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PETITIONER: PROVINCE OF BOMBAY

       Vs.

RESPONDENT: KUSALDAS S. ADVANI AND OTHERS

DATE OF JUDGMENT: 15/09/1950

BENCH: KANIA, HIRALAL J. (CJ) BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K.

CITATION:  1950 AIR  222            1950 SCR  621  CITATOR INFO :  E&F        1959 SC 107  (10,10A,11,43,44,45,46,49,54,*  F          1959 SC 308  (19,44,46,58)  F          1960 SC 415  (18)  APL        1960 SC 606  (6)  R          1961 SC1506  (18)  R          1961 SC1669  (3,4,11)  F          1962 SC1110  (7)  R          1962 SC1621  (36,60)  R          1963 SC 677  (11)  RF         1963 SC 874  (5)  D          1964 SC1230  (16)  R          1965 SC1595  (10)  R          1965 SC1798  (6)  R          1966 SC  81  (5)  F          1966 SC  91  (11)  R          1967 SC 908  (8)  MV         1967 SC 997  (47)  R          1967 SC1507  (6)  RF         1969 SC 707  (50)  APL        1970 SC1896  (18)  D          1972 SC2656  (11)  R          1973 SC 834  (20)  E          1973 SC2237  (3)  RF         1975 SC 596  (3,6,8)  F          1976 SC 667  (4)  RF         1976 SC1207  (527)

ACT:     Bombay Land Requisition Ordinance (V of 1947), ss. 3, 4, 10,12--Order  requisitioning land--Application for  writ  of certiorariOrder  of requisition, whether judicial or  quasi- judicial  act,  or administrative  act--Construction  of  s. 3--Existence of public purpose, whether condition  precedent to  exercise  of power to requisition  --Whether  collateral fact  or composite part of power to  requisition-Distinction between judicial or quasi-judicial acts, and  administrative acts--Guiding   principles   and  tests--Writ   of   certio- rari--Nature and incidents of the writ--Power  of High Court to  issue writ against Provincial Government--Government  of India Act, 1935, ss. 176, 306--" Sue, "meaning of.

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HEADNOTE:    Held by the Full Court, (KANIA C.J., FAZL ALl, PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and BAs JJ.).--A  writ of  certiorari lies whenever a body of persons having  legal authority  to  determine questions affecting the  rights  of subjects and having the duty to act judicially act in excess of  their  legal  authority; it does not lie  to  remove  or adjudicate  upon an order which is of an  administrative  or ministerial nature.    Section 3 of  the Bombay  Land  Requisition  Ordinance (V of  1947) provided as follows :--" If in the opinion of  the Provincial Government it is necessary or expedient to do  so the Provincial Government may, by order in writing  requisi- tion any land for any public purpose: Provided that no  land used for the purpose of public religious worship or for  any purpose  which  the  Provincial Government  may  specify  by notification in the Official Gazette shall be  requisitioned under  this section."  The let respondent who was a  refugee from Sind got an assignment of the tenancy rights in a  flat in Bombay and went into possession of the fist.  A few  days later the Government of Bombay issued an order  requisition- ing the flat under s. 3 of the abovesaid Ordinnance,  allot- ted  the  same to another refugee and issued  orders  to  an Inspector to take possession of the same.  On an application under Art. 32 of the Constitution, a writ of certiorari  was issued  by  the Bombay High Court against  the  Province  of Bombay and others and this order was confirmed on appeal  as against  the Province of Bombay by a Division Bench  of  the said High Court.     Held, per KANIA C.J., FAZL ALI, PATANJALI SASTRI and DAS JJ. (MAHAJAN and MUKHERJEA JJ. dissenting)--that on a proper construction  of s. 3 of the Ordinance the decision  of  the Bombay  Government  that  the property was  required  for  a public 622 purpose was not a judicial or quasi-judicial decision but an administrative  act and the High Court of Bombay had  there- fore  no jurisdiction to issue a writ of certiorari  in  re- spect of the order of requisition.  Per MAHAJAN and  MUKHER- JEA  JJ. (contra).-- The Government of Bombay is a  body  of persons  having legal authority to determine  questions  af- fecting  the  rights of subjects and in deciding  whether  a land  was  required for a public purpose under s. 3  of  the Ordinance  it had to act judicially.  The conditions  neces- sary  for the granting of a writ of certiorari were  accord- ingly  satisfied and the High Court of Bombay had  power  to issue the writ. KANIA C.J.-- Though a writ of certiorari may be issued where a body of persons having legal authority to determine  ques- tions affecting the rights of subjects and having a duty  to act  judicially act in excess of their legal authority,  yet merely  because  an  executive authority  has  to  determine certain objective facts affecting the rights of subjects  as a preliminary step to the discharge of an executive function it does not follow that it must determine those facts  judi- cially.   On the contrary, when the executive authority  has to  form an opinion about an objective matter as a  prelimi- nary  step to the exercise of a certain power  conferred  on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an  adminis- trative character and are not amenable to the writ of certi- orari.

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    It  cannot  be laid down broadly that in order  that  a determination may be a judicial or quasi-judicial one  there must  be a proposition and an opposition, or that a  lis  is necessary,  or  that it is necessary that  there  should  be right  to  examine, cross examine and  reexamine  witnesses. The true test is whether the law, under which the  authority is  making a decision, itself requires a judicial  approach. Prescribed forms are not necessary to make an inquiry  judi- cial,  provided in coming  to the  decision well  recognised principles of approach are required to be followed.                   FAZAL  ALI  J.--  The mere  fact  that  an executive  authority has to decide something does  not  make the decision judicial.  It is the manner in which the  deci- sion has to be arrived at which makes the difference and the real test is there any duty to decide judicially.  There  is nothing  in  s. 3 or any other section of the  Ordinance  in question which imposes expressly or impliedly     a duty  on the  Provincial  Government  to decide the  existence  of  a public purpose judicially or quasi-judicially.    It is well settled that when an Act or regulation commits to an executive authority the decision of what is  necessary or expedient and that authority make the decision, it is not competent  to the courts to investigate the grounds  or  the reasonableness of the decision in the absence of an  allega- tion of bad faith, and the opinion formed by the  Provincial Government  whether it is necessary or expedient to  acquire land, given a public purpose, 623 cannot  therefore  be questioned.  The same cannot  be  said with regard to the decision of the Provincial Government  as to the existence of a public purpose which is the foundation of  its power and is a condition precedent to its  exercise. The  determination  of the public purpose  and  the  opinion formed  as to the necessity or expediency of requisition  do not form one psychological process but are two distinct  and independent  steps and if the executive  authority  requisi- tions land  under s. 3 without there being a public  purpose in  existence its action would be a nullity, and the  person whose right is affected can go to the proper court and claim a declaration that his rights cannot be affected.  An appli- cation for certiorari would not, however, lie in such a case as  the requisition of premises under s. 3 of the  Ordinance is a purely administrative act and does not involve any duty to  decide  the existence of a public purpose or  any  other matter judicially or quasi-judicially.     MAHAJAN J.--The question whether an act is a judicial or a  quasi-judicial one or a purely executive act  depends  on the  terms of the particular rule and the nature, scope  and effect of the particular power in exercise of which the  act may  be  done and would therefore depend on  the  facts  and circumstances of each case.  The question whether a land  is required  for a public purpose or is being used  for  public worship  involves difficult questions of law and fact  seri- ously  affecting the rights of parties. These are not  ques- tions for the mere  determination of the Government  subjec- tively  by its own opinion, but are matters for   determina- tion  objectively  and in a judicial  manner,  on  materials which the Government have sufficient power to call for under es. 10 and 12 of the Ordinance after hearing any  opposition to its proposal, and the High Court of Bombay had  therefore jurisdiction to issue a writ of certiorari.     MUKHERJEA J.--Under s. 3 of the Ordinance,  the  act  of requisitioning  land is left to the executive discretion  of the Provincial Government. But the section makes the  exist- ence  of a public purpose an essential prerequisite  to  the

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taking  of steps by the Provincial Government in the  matter of  requisitioning  any property and under the  section  the essential fact on which the jurisdiction to proceed with the requisition is rounded is the existence of a public  purpose as an objective fact, and not the subjective opinion of  the Provincial  Government  that such fact  exists.   Whether  a public purpose exists or not has to be determined judicially as there is a lie or controversy between the interest of the public  on the one hand and that of the individual who  owns the property on the other hand, and the determination of the Government  was therefore a judicial act; the  determination was further a collateral matter on which the jurisdiction to requisition was rounded, and not a part of the executive act of 624 requisitioning, and a writ of certiorari could therefore  be issued in      DAS  J.--The words "to do so" in s. 3 of the  Ordinance refer to the entire composite matter of "requisitioning  for a  public purpose," not merely to the act of  requisitioning simpliciter  and the existence of a public purpose was  left as  much to the subjective opinion  of  the Provincial  Gov- ernment  as the necessity or expediency for requisitioning a particular  land.   As the formation of the opinion  on  the entire matter was purely subjective and the order of  requi- sition was to be rounded on this subjective opinion, it  was not  a judicial or quasi-judicial act but a purely  adminis- trative act  and consequently it was not a matter in respect of which a writ of certiorari could be issued.  Even on  the assumption  that the question of the existence of  a  public purpose  had not been left to the subjective opinion of  the Provincial Government and that the question had to be deter- mined by it, there was nothing in s. 3 to suggest that  such determination had to be made judicially and a writ of certi- orari would not in any case lie.   Even if the existence of a public purpose was a collateral fact,  then at best is was only a case of an  administrative body  assuming  jurisdiction to perform  its  administrative powers,  and  if  it assumes jurisdiction  on  an  erroneous assumption  it might be corrected by an action, but  certio- rari cannot be an-appropriate remedy;  and assuming  further that this collateral fact had to be decided quasi-judicially and  its decision might be quashed, the administrative  act, namely the formation of opinion and the order based  thereon would still remain unaffected by certiorari.     In order that a body may be a quasi-judicial body it is not enough that it should have legal authority to  determine questions  affecting the rights of subjects; there  must  be superadded to that characteristic the further characteristic that the body has the duty to act judicially.      If a statute empowers an authority not being a court in the ordinary sense to decide disputes arising out of a claim made  by one party under the statute which claim is  opposed by  another party and to determine the respective rights  of the contesting parties who are opposed to each other,  there is a lie and prima facie, and in the absence of anything  in the statute to the contrary, it is the duty of the authority to  act  judicially and the decision of the authority  is  a quasi-judicial act.      If a statutory body his power to do any act which  will prejudicially  affect the subject, then although there   are not two parties apart from the authority, and the contest is between  the authority proposing to do the act and the  sub- ject  opposing it, the final determination of the  authority will  yet be a quasi-judicial act provided the authority  is

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required by the statute  to act judicially. 625     A mere provision for an enquiry as a preliminary step to coming to a decision will not necessarily make the  decision a  quasi-Judicial act, for, the purpose of the  enquiry  may only be to enable the deciding authority to make up its mind to do what may be a purely administrative act.     Held,  per KANIA C.J., FAZL ALI, PATANJALI  SASTRI,  and DAS JJ.--The powers given to the Provincial Government under ss.  10  and 12 of the Ordinance are only  enabling  and  in terms  are  not compulsory, and there is  nothing  in  these sections  which makes it incumbent on the Government to  set judicially in the matter of making an order for  requisition under s. 3.     Held  also, per MAHAJAN, and MUKIIERJIEA  JJ.--(i)  that the  immunity granted by s. 306 of the Government  of  India Act,  1935, related to the Governor and not, to the  Provin- cial  Government  and under the said Act the High  Court  of Bombay  had  jurisdiction  to issue  a  writ  of  certiorari against the Provincial Government of Bombay;  (ii) that  the word "sue" in  s. 176 of the said Act meant the  enforcement of  a claim or a civil right by means of  legal  proceedings and was wide enough to include an application for a writ  of certiorari.   Rex v. Electricity Commissioners ([1924] 1 K.B. 171),  Rex v.  London Coounty Council ([1931] 9, K. B. 215), The  Queen v.  Corporation  of Dublin ([1878] 2 L.R.  Ir.  371),  Frome United Breweries v. Bath Justices ([1996] A.C. 386), _Rex v. Archbishop  of Canterbury ([1944] 1 K.B. 281), Rex v.  Wood- house  ([1906]  2  K.B. 501),  King  v.  Postmaster  General ([1928]  1 K.B. 291), _Rex v. Boycott and Others  ([1939]  2 K.B. 651), Franklin v. Minister of Town and Country Planning ([1948]  A.C.  87), In re Banwarilal  Roy (48  C.W.N.  766), Jugilal  Kamlapat  v.   Collector of Bombay  (47  Bom.  L.R. 1070), Hamabai Framji Petit v. Secretary of State for India (L. R, 42, I.A.     44),King   v.  Bradford ([1908] 1 K.B. 865),  and  other cases referred to.

JUDGMENT: APPELLATE JURISDICTION (CIVIL): Case No. III of 1949.     Appeal  under  section 205 of the  Government  of  India Act,  1935,  from the judgment  of  the Bombay High Court (Chagla C.J. and Tendolkar J.) dated the 4th  day of:January, 1949, in Appeal No. 65 of A948.     M.C.  Setalvad,  Attorney-General for  India   and  C.K. Daphtary,Advocate-General  of  Bombay (G.N. Joshi  and  M.M. Desai with them) for the appellant.     H.M.  Seervai,  R.J. Joshi and Rameshwar Nath,  for  re- spondents Nos. 1 (a) and 1 (b). 626 1950.   September  15.  The  Court  delivered  judgment   as follows:--     KANIA  C.J.--This  is an appeal from a judgment  of  the High Court at Bombay and it relates to the power of the High Court to issue a writ of certiorari against the province  of Bombay  to quash an order to requisition  certain  premises. The  material facts, as stated in the judgment of  the  High Court, are these.  One Abdul Hamid Ismail was, prior to  the 29th  of January, 1948, the tenant of the first floor  of  a building  known  as" Paradise" at Warden Road,  Bombay,  the landlord  of  which  was one Dr. M.D. Vakil.   On  the  29th

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January, 1948, Ismail assigned his tenancy to the petitioner and two others, the son  and brother’s daughter’s son of the petitioner  (the respondent).  All the three assignees  were refugees  from Sind.  On the 4th February, 1948,  the  peti- tioner went into possession of the flat.  On the 26th Febru- ary, 1948, the Government of Bombay issued an order requisi- tioning the flat under section 3 of the Bombay Land Requisi- tion Ordinance (V of 1947) which came into force on the  4th December,  1947 On the same day Dr. Vakil was informed  that the Government had allotted the premises to Mrs. C.  Dayaram who was also a refugee from Sind. Further orders were issued authorising an Inspector to take possession of the premises. On the 4th March, 1948, the petitioner filed a petition  for a  writ  of certiorari and n order under section 45  of  the Specific Relief Act.  The petition was heard by Mr.  Justice Bhagwati  who,  iNter  alia, granted the  writ  against  the province  of  Bombay and the Secretary etc.  On  appeal  the appellate Court confirmed the order as regards the issue  of the writ of certiorari against the appellant, but  cancelled the  order as regards the other parties.  The appellant  has come on appeal to this Court.     The  learned Attorney-General, on behalf of  the  appel- lant,  urged  the  following three points  for  the  Court’s consideration:     (1)(a).  Having regard to the provisions of Ordinance  V of 1947, whether the order in question was quasi-judicial or only administrative ? 627     (b) Assuming the order to be of a quasi-judicial nature, whether it was a case of want or excess of jurisdiction,  or it was only a case of mistake of law ?     (2) Whether a writ of certiorari can be. issued  against the  appellant, which for its actions under  the  Ordinance, represents the Crown ?     (3). Whether the order in question was made for a public purpose ?     Sections  3,  4, 10 and 12 of the  Ordinance  which  are material for the discussion in this appeal run as follows:     "&  Requisition of land  ....  If in the opinion of  the Provincial Government it is necessary or expedient to do so, the  Provincial Government may by order in writing  requisi- tion any land for any public purpose:     Provided  that  no land used for the purpose  of  public religious  worship or for any purpose which  the  Provincial Government  may  specify  by notification  in  the  Official Gazette shall be requisitioned under this section.     4.  Requisition of vacant premises.--(1) If any premises situate in an area specified by the Provincial Government by notification in the Official Gazette are vacant on the  date of  such notification and whenever any such premises  become vacant  after  such date either by the landlord  ceasing  to occupy the premises, or by the termination of a tenancy,  or by the eviction of a tenant, or by the release of the  prem- ises.  from requisition or otherwise, the landlord  of  such premises  shall  give intimation thereof in  the  prescribed form to an officer authorised in this behalf by the  Provin- cial Government.     (2)   Such intimation  shall  be given  by  post  within one  month of the date of such notification in the  case  of premises  which are vacant on such date, and in other  cases within seven days of the premises being vacant.     (3) A landlord shall not, without the permission of  the Provincial Government, let the premises before 628 giving  such intimation and for a period of one  month  from

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the date on which such intimation is given.     (4)   Whether or not an intimation under subsection  (1) is given, and notwithstanding anything contained in  section 3, the Provincial Government may by order in writing  requi- sition the premises and may use or deal with the premises in such manner as may appear to it to be expedient.     (5)   Any  landlord who fails to  give  such  intimation within  the  period specified in sub-section  (2)  shall  on conviction, be punishable with fine which may extend to  one thousand  rupees and any landlord who lets the  premises  in contravention  of the provisions of sub section (8),  shall, on  conviction, be punishable with imprisonment  which.  may extend to three months or with fine or with both.     10.   Power to obtain information.--(1)  The  provincial Government may, with a view to carrying out the purposes  of this  Ordinance, by order require any person to  furnish  to such authority as may be specified in the order such  infor- mation  in  his  possession relating to any  land  which  is requisitioned  or is continued under requisition or  is  in- tended to be requisitioned or continued under requisition.    (2)  Every person required to furnish such information as is  referred  to in sub-section (1) shall be  deemed  to  be legally  bound to do so within the meaning of  sections  176 and 177 of the Indian Penal Code (XLV of 1860).    12.  Power to enter and inspect  land.--Without prejudice to  any  powers otherwise conferred by  this  Ordinance  any officer or person empowered in this behalf by the Provincial Government by general or special order may enter and inspect any land for the purpose of determining whether, and, if so, in what manner, an order under this Ordinance should be made in relation to such land, or with a view to securing compli- ance with  any order made under  this Ordinance." 629     On  the  first question, it was pointed out  that  under section  3 of the Ordinance the decision of  the  Provincial Government  to  requisition certain premises  is  clearly  a matter of its opinion and therefore not liable to be  tested by  any objective standard.  It was urged that the  decision as  to  whether  the premises were  required  for  a  public purpose was also a matter for the opinion of the  Provincial Government,  and not a matter for  judicial   investigation, and  therefore  the making of the order was in  no  sense  a quasi-judicial decision, but  an  administrative  or  minis- terial  order.  In this connection it was pointed  out  that unlike  the Land Acquisition Act there was no  provision  in the  Ordinance for issuing a notice, or for inquiries to  be made,  or for rival contentions to be examined and  evidence to  be  weighed  before a decision is arrived  at.   It  was pointed out that if  public purpose was outside the scope of the opinion of the Provincial Government, the section  would have  run:  "If  for any public purpose in  the  opinion  of Government....  ........."     A discussion  about  the  distinction  between  judicial and  quasi-judicial functions is not useful in this case  as the point for determination is whether the order in question is a quasi-judicial order or  an administrative or  ministe- rial   order.    In   Regina   (John   M’Evoy)   v.   Dublin Corporation(1), May CJ. in dealing  with this point observed as follows:--" It is established that the writ of certiorari does not lie to remove an order merely ministerial, such  as a  warrant,  but it lies to remove and adjudicate  upon  the validity  of  acts judicial.  In this connection,  the  term ’judicial’  does  not necessarily mean acts of  a  judge  or legal  tribunal sitting for the determination of matters  of law,  but  for the purpose of this question a  judicial  act

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seems to be an act done by competent authority, upon consid- eration  of facts and circumstances, and imposing  liability or  affecting  the rights of others."  This  definition  was approved  by Lord Atkinson in Frome United Breweries Co.  v. Bath Justices (2) as the best (1) [1878] 2 L.R. Irish 371, 376.      (2) [1926] A.C,  586. 602. 630 definition of a judicial act as distinguished from an admin- istrative act.     A  distinction  between the nature of the two  acts  has been  noticed in a series of decisions.  This Irish case  is one of the very early decisions.  On behalf of the  respond- ent  it was contended that as stated by Chief  Justice  May, whenever there is the determination of a fact which  affects the  rights of parties, that determination is a  quasi-judi- cial  decision  and, if so, a writ of  certiorari  will  lie against  the  body entrusted with the work  of  making  such decision.   As  against  this, it was pointed  out  that  in several English cases emphasis is laid on the fact that  the decision should be a judicial decision and the obligation to act  judicially is to be found in the Act  establishing  the body  which makes the decision.  This point appears to  have been  brought  out clearly in The King  v.  The  Electricity Commissioners (1), where Lord Justice Atkin (as he then was) laid down the following test:  "Wherever any body of persons having legal authority to determine questions affecting  the rights  of subjects, and having the duty to act  judicially, act  in excess of their legal authority they are subject  to the  controlling jurisdiction of the King’s  Bench  Division exercised  in these’ writs."  This passage has   been  cited with  approval  in  numerous  subsequent decisions  and  ac- cepted  as  laying down the correct test.  A  slightly  more detailed examination of the distinction is found in The King v.  London County Council (2), where Scrutton L.J.  observed as follows :--"it is not necessary that it should be a court in the sense in which this court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in  the  sense that it has to decide on evidence  between  a proposal  and an opposition; and it is not necessary  to  be strictly  a court; if it is a tribunal which has  to  decide rights after hearing evidence and opposition, it is amenable to  the  writ of certiorari."  Lord Justice Slesser  in  his judgment at page 243 separated the four conditions laid down by Atkin L.J. under which a rule (1) [1924] 1 K.B. 171.          (2) [1931] 2 K.B. 215, 233. 631 certiorari  may issue.  They are: wherever any body of  per- sons  (1) having legal authority (2) to determine  questions affecting rights of subjects and (3) having the duty to  act judicially  (4) act in excess of their.  legal  authority--a writ  of  certiorari may issue.  He examined each  of  these conditions  separately and came to the conclusion  that  the existence  of each was necessary to determine the nature  of the   act   in question.  In. The Ryots  of  Garabandho  and other villages v. Zamindar of Parlakimedi (1) Viscount Simon L.C.,   in  delivering the  judgment of the Board,  accepted the test of these four conditions to determine the nature of the  act.  He stated: "This writ does not issue  to  correct purely  executive acts but, on the other hand, its  applica- tion  is not narrowly limited to inferior  ’courts’  in  the strictest  sense.  Broadly speaking, it may be said that  if the  act  done by the inferior body is a  judicial  act,  as distinguished from being a ministerial act, certiorari  will lie.    The remedy, in point of principle, is  derived  from

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the  superintending   authority   which   the    Sovereign’s superior courts and in particular the court of King’s Bench, possess  and  exercise  over  inferior  jurisdictions.  This principle has been transplanted to other parts     of King’s Dominions  and operates, within  certain limits, in  British India."  In  Franklin  v.  The Minister of Town and  Country Planning  (2), the points of distinction are again  noticed. The question arose in respect of the town and country  plan- ning  undertaken under the relevant Statute on the order  of the  Minister  following a public local  inquiry  under  the provisions  of the Act.  The question was whether the  order of the Minister was a quasi-judicial act or a purely. admin- istrative  one.  Lord Thankerton pointed out that  the  duty was  purely  administrative but the Act  prescribed  certain methods  or  steps  in the discharge of  that  duty.  Before making  the draft order, the Minister must have made  elabo- rate  inquiry into the matter and have consulted  any  local authorities  who  appear to him to be  concerned  and  other departments (1) 70 I.A. 129.                (2) [1948]  A.C. 87, 102, 632 of  the  Government.  The Minister was required  to  satisfy himself that it was a sound scheme before he took the  seri- ous  step  of  issuing a draft order.  For  the  purpose  of inviting  objections and where they were not  withdrawn,  of having a public inquiry to be held by someone other than the respondent  to whom that person reports was for the  further information of the respondent for the final consideration of the soundness of the scheme.  He observed:  "I am of opinion that no judicial duty is laid on the respondent in discharge of  these  statutory duties and that the  only  question  is whether  he  has complied with the statutory  directions  to appoint a person to hold the public inquiry and to  consider that person’s report." Learned counsel for the respondent  referred     to  several cases  but in none of them  the  dicta    of Atkin L.J.   or the   four  conditions  analysed  by Slesser L.J. have  been suggested,  much less stated, to be not the  correct  tests. The respondent’s argument that whenever there is a  determi- nation  of a fact which affects the rights of  parties,  the decision is quasijudicial, does not appear to be sound.  The observations  of May C.J., when properly read, included  the judicial  aspect of the determination in the words  used  by him.  I am led to that conclusion because after the test  of judicial duty of the body making the decision was  expressly stated  and   emphasized by Atkin and Slesser  L.JJ.  in  no subsequent decision it is even suggested that the dictum  of May C.J. was different from the statement of law of the  two Lords  Justices or that the latter, in any way, required  to be  modified. The word "quasi-judicial"  itself  necessarily implies the existence of the judicial element in the process leading  to  the decision.  Indeed, in the judgment  of  the lower court, while it is stated at one place that if the act done  by  the inferior body is a judicial  act,  as  distin- guished  from  a  ministerial act, certiorari  will  lie,  a little  later the idea has got mixed up where it is  broadly stated that when the fact has to be determined by an  objec- tive  test  and  when that decision affects rights of  some- one, the decision or act 63 is quasi-judicial.  This last statement overlooks the aspect that every decision of the executive generally is a decision of  fact and in most cases affects the rights of someone  or the  other.   Because  an executive authority has to  deter-

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mine  certain objective. facts as a preliminary step to  the discharge of an executive  function, it does not follow that it  must determine those facts judicially.  When the  execu- tive  authority  has to form an opinion about  an  objective matter  as a preliminary step to the exercise of  a  certain power  conferred on it, the determination of  the  objective fact and the exercise of the power based thereon  are  alike matters of  an administrative character and are not amenable to  the  writ  of certiorari.  Observations  from  different decisions of the English Courts were relied upon to find out whether  a  particular determination was  quasi-judicial  or ministerial. In some cases it was stated that you require  a proposition and an opposition, or that a lis was  necessary, or that it was necessary to have a right to examine,  cross- examine   and   reexamine  witnesses.   As  has  often  been stated,  the  observations in a case have to be  read  along with  the  facts thereof and the emphasis in  the  cases  on these  different aspects is not necessarily the complete  or exhaustive statements of the requirements to make a decision quasi-judicial  or otherwise. It seems to me that  the  true position  is that when the law under which the authority  is making a decision, itself requires a judicial approach,  the decision will be quasi-judicial.  Prescribed forms of proce- dure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles  of approach  are  required to be followed.  In my  opinion  the conditions  laid down by Slesser L.J. in his  judgment  cor- rectly  bring  out  the distinction between  a  judicial  or quasi-judicial  decision on the one hand and  a  ministerial decision on the other.     On  behalf of the respondent it was strongly urged  that even  applying  these tests the decision of  the  Provincial Government  under section a is quasi-judicial. The  decision whether the premises were required for a public 634 purpose  was  contended not to be a matter of  opinion.  The power  to  make  inquiries under sections  10  and  12  were strongly relied upon in this connection.     Two  cases  were  strongly relied upon  by  the  learned counsel for the respondent in support of his contention that the order in the present case was quasi-judicial. The  first is  The King v. The Postmaster General (1). In that case  an employee claimed compensation under the Workmen’s  Compensa- tion Act. The compensation was payable to him if the workman obtained a certificate of the certifying surgeon that he was suffering  from the telegraphists’  cramp and   was  thereby disabled. A medical practitioner was appointed by the Secre- tary of State and was given powers and duties of a  certify- ing  surgeon  under section 4 of the relevant  Act.   By  an order  of the Secretary of State, made in pursuance of  that section,  it  was provided that so far as regards  the  post office employees, the post office medical officer     "under whose  charge the workman is placed shall, if authorized  to act "be substituted for the certifying surgeon in  cases  of telegraphists’  cramp.   It  was the practice  of  the  post office to refer all cases of such cramp to the chief medical officer of the post office and this reference was relied  on as   constituting him the  substitute  for  the   certifying surgeon  under the Act and Order.  The  applicant  suffering from telegraphists’ cramp was on the capitation list of  the local post office medical officer but in fact never consult- ed  him.  On her claiming  compensation  for  telegraphists’ cramp the case was referred to the chief medical officer  in accordance  with the usual practice who certified  that  the applicant  was not suffering from such cramp.  It  was  held

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that the giving of the certificate was therefore the  appro- priate  subject  of proceedings by way  of  certiorari.   In rejecting the argument that on the issue of such certificate no right  to obtain a writ came into existence, because  the certificate  was a mere nothing as it had to be followed  by another  examination and inquiry, Lord Hewart C.J.  observed as follows: "I do not think that it was (1) [1928] 1 K.B.291. 635 contemplated at all that the judgment of the medical referee should, in the smallest degree, be lettered or influenced by a certificate given by a wholly unauthorized person and I do not  think  Mrs. Carmichael would be in  the  same  position before  the medical referee as that in which she would  have been  if there had been a refusal on the part of the  proper officer  to give her any certificate at all."   A  surgeon’s certificate  which  gave or deprived a person  of  right  to compensation  was thus considered a judicial act and if  the person had no jurisdiction to give such a certificate a writ of  certiorari was considered the proper remedy.  It  should be  noticed  that in this case a procedure  of  inquiry  was provided under the Act.  The case was under entirely differ- ent  provisions  of the Workmen’s Compensation  Act,  which, inter  alia,  gave a right of appeal against  the  surgeon’s decision.  It  may be further noticed  that  the  subsequent right to obtain compensation started with the certificate in question  and  was not an independent act  of  the  deciding authority having no connection or concern and not influenced by  this  decision.  A similar decision in  respect  of  the mental  capacity of a boy in a school is in Rex  v.  Boycott and Others (1). In that case also the opinion of the examin- ing doctor, which had to be followed by subsequent  examina- tion and inquiry, was considered subject to a writ of certi- orari because that decision directly related to the boy  and was  the starting point for proceeding under  the  Detention Act and the Mental Deficiency Act.     Bearing in mind the important factor  which distinguish- es a quasi-judicial decision from an administrative act,  it is next necessary to find out whether the action of  Provin- cial Government permitted under section 3 of the  Ordinance, read  along  with the scheme of the Ordinance, is  a  quasi- judicial decision or an administrative act. Section 3 of the Ordinance  permits  the  Provincial Government,  if  in  its opinion  it is necessary or expedient to do so, to  make  an order  in  writing to requisition any land  for  any  public purpose. Keeping aside for the moment the proviso to the (1) [1939] 2 K.B. 651. 636 section,  it is not seriously disputed that  the  subjective opinion of the Provincial Government in respect of the order of  the  requisition is not open to challenge by a  writ  of certiorari.  The  Ordinance has left that  decision  to  the discretion  of  the Provincial Government and  that  opinion cannot  be revised by another authority.  It appears  there- fore  that except when mala fides  is clearly  proved,  that opinion  cannot be questioned. The next question is  whether the requirement "for any public purpose" stands on the  same footing. On behalf of the appellant, it was argued that  the opinion of the Government, that it is necessary or expedient to pass an order of requisition, stands on the same  footing as  its decision on the public purpose.  In the  alternative it was urged that the two factors, viz., necessity to requi- sition and decision about public purpose, form one composite opinion and the composite decision is the subjective opinion of the Provincial Government. The third alternative  conten-

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tion was that the decision of the Government about a  public purpose  is a fact which it has to ascertain or decide,  and thereafter  the  order  of requisition has  to  follow.  The decision  of  the  Provincial Government as  to  the  public purpose  contains  no judicial element in it.  Just  as  the Government  has to see that its order of requisition is  not made  in respect of land which is used for public  religious worship  or is not in respect of land used If or  a  purpose specified  by  the  Provincial Government  in  the  Official Gazette, (as mentioned in the proviso to section 3) or  that the premises are vacant on the date when the notification is issued  (as  mentioned in section 4 of the  Ordinance),  the Government  has to decide whether a particular  object,  for which it is suggested that land should be requisitioned, was a public purpose.     In  my  opinion, this third  alternative  contention  is clearly  correct  and it is unnecessary therefore  to  deal, with the first two arguments.  There appears nothing in  the Ordinance  to show that in arriving at its decision on  this point  the  Provincial  Government has  to  act  judicially. Sections 10 and 12, which were relied upon to show that  the decision was quasi-judicial, in my 637 opinion, do not support the plea. The enquiries mentioned in those sections are only permissive and the Government is not obliged  to make them.  Moreover, they do not relate to  the purpose  for  which the land may be required.  They  are  in respect of the condition of the land and such other  matters affecting  land. Every decision of the Government,  followed by  the exercise of certain power given to it by any law  is not  necessarily judicial or quasi-judicial.  The  words  of section a read with the proviso, and the words of section     taken  along with the scheme of the whole Ordinance,  in my  opinion, do not import into the decision of  the  public purpose  the judicial element required to make the  decision judicial  or quasi-judicial. The decision of the  Provincial Government about public purpose is therefore an  administra- tive  act.  If the Government erroneously decides that  fact it is open to question in a court of law in a regular  suit, just  as its action, on its decision on the facts  mentioned in  the  proviso to section 3 and in section 4, is  open  to question  in a similar way. The argument that a suit may  be infructuous because a notice under section 80 of the Code of Civil  Procedure is essential and that remedy  is  therefore inadequate, is unhelpful.  Inconvenience or want of adequate remedy does not create a right to a writ of certiorari.   It is  clear that such writ can be asked for if two  conditions are fulfilled.  Firstly, the decision of the authority  must be  judicial or quasi-judicial, and secondly, the  challenge must be in respect of the excess or want of jurisdiction  of the  deciding authority.  Unless both those  conditions  are fulfilled  no application for a writ of certiorari can  suc- ceed.  As,  in my opinion, the decision  of  the  Provincial Government about public purpose is not a judicial or  quasi- judicial decision, there is no scope for an application  for a writ of certiorari.     Having  regard to my conclusion, it is not necessary  to discuss  the  other  points urged  by.  the  AttorneyGeneral against  the issue of a writ against the Province of  Bombay and I pronounce no opinion on the same. 638 The  result is that the appeal is allowed and the   petition dismissed.  The order of costs  made  by the lower courts in favour of the respondents is cancelled. The respondents will pay the costs throughout. The costs of the lower courts will

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be  taxed in favour of   the appellant on the terms  allowed by those courts in favour of the respondents. The respondent will  pay  the costs of the appeal here. The order of  costs against the respondents will be limited to the assets of the deceased come to their hands, as the original applicant  has died pending these proceedings.      FAZL  ALl  J.--This is, in my opinion, quite  a  simple case, but it has been greatly complicated by the citation of a  mass  of decisions by the parties and by  an  attempt  on their  part to extract from them some principle  to  support their respective contentions.      The principal question to be decided in this appeal  is whether a writ of certiorari is avail able to the respondent to remove or quash an order made by the Government of Bombay requisitioning  certain premises under section a  of  Bombay Ordinance No. V of 1947.  It is well settled that a writ  of certiorari  can  be issued only against inferior  courts  or persons or authorities who are required by law to act  judi- cially or quasi-judicially, in those cases where they act in excess of their legal authority.  Such a writ is not  avail- able to remove or correct executive or administrative  acts. The  first question therefore to be decided in this case  is whether the order passed by the Government of Bombay  requi- sitioning  the premises in question is a judicial or  quasi- judicial order or an executive or administrative order.      Without going into the numerous cases cited before  us, it may be safely laid down that an order will be a  judicial or quasi-judicial order if it is made by a court or a judge, or  by  some  person or authority who is  legally  bound  or authorized  to act as if he was a court or a judge.  To  act as a court or a judge necessarily involves giving an  oppor- tunity  to  the party who is to be affected by an  order  to make a representation, 639 making some kind of inquiry, hearing and weighing  evidence, if  any,  and considering all the  facts  and  circumstances bearing on the merits of a controversy, before any  decision affecting  the rights of one or more parties is arrived  at. The procedure to be followed may not be as elaborate as in a court of law and it may be very summary, but it must contain the essential elements of judicial procedure as indicated by me.  In  some of the cases which were cited  before  us  and which  have been discussed in the elaborate judgments  under appeal, an attempt has been made to lay down certain  formu- lae  for  determining  whether an order  is  a  judicial  or quasi-judicial  order or not, but in my opinion it is  safer to grasp the principle than to depend on the application  of any formula or formulae. Again, a large number of cases were cited to show various instances in which a person or persons was or were held to act judicially or quasi-judicially,  but those cases, as I have already indicated, often obscure what may otherwise be a simple question; and apart from the  fact that  this  Court is not bound to refer to cases  unless  it finds  it  necessary to do so, I fully share  the  view  ex- pressed by the Privy Council in Wijeyesekar v. Festing (1)as to  why cases decided under different enactments  are  often not  very helpful.  In that case, which related to a  Ceylon Ordinance,  one  of the provisions of which  appears  to  be similar  in certain respects to section a of  the  Ordinance before us, the Privy Council observed:     "Reference  has been made to cases dealing with  similar questions  arising  under  statutory  enactments  in  India. Their  Lordships  do not refer to those  cases  because  the wording of the enactment is not the same, and their  discus- sion might, to some extent, complicate what appears to their

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Lordships to be a very simple issue."     Having made these observations, they proceeded say: (1) [1919] A.C. 646. 640     "The  whole  case is decided, in the opinion,  of  their Lordships,  in  the  last three lines of section  6  of  the Ordinance."     In the present case also, the simplest way to decide  it is  to try to construe correctly section 3 of the  Ordinance under  which  this case has arisen.  That section,  runs  as follows:     "If  in the opinion of the Provincial Government  it  is necessary  or expedient to do so, the Provincial  Government may by order in writing requisition any land for any  public purpose:     Provided  that  no land used for the purpose  of  public religious  worship or for any purpose which  the  Provincial Government  may  specify  by notification  in  the  Official Gazette shall be requisitioned  under  this section."     In  construing  this section, it is our  first  duty  to enter into the mind of the framers of the Ordinance and look at  the whole matter as they must have looked at  it.   Pro- ceeding in this way, two things seem to me to be clear:  (1) The  existence of a public purpose is the foundation of  the power  (or jurisdiction, if that term may  appropriately  be used  with reference to an. executive body) of the   Provin- cial Government to requisition premises under section 3, or, as  is  sometimes said, it is a condition precedent  to  the exercise  of  that power.  I think that this aspect  of  the matter  has  been very lucidly summed up by Bhagwati  J.  in these words:     "Unless  and until there was a public purpose in  exist- ence  for the achievement of which they would  exercise  the power  invested in them under section 3, there would  be  no jurisdiction at all in the Provincial Government to make any order  for requisition of land. It is only when that  public purpose  existed  that the jurisdiction  of  the  Provincial Government would come to be exercised and then and then only would  they  be  invested with the  discretion  of  deciding whether it is necessary or expedient to requisition any land for  the achievement of that purpose.  It therefore  follows that 641 the  existence of a public purpose.is a condition  precedent to  the exercise of the power of requisitioning invested  in the  Provincial  Government by section 3 of  the  Ordinance. The  Provincial  GOvernment  are not  constituted  the  sole judges  of what that public purpose is.  The public  purpose has to exist before they can exercise any power of  requisi- tion of land within the meaning of that section."     (2)  The  framers  of the Ordinance  never  intended  to impose  any duty on the Provincial Government  to  determine judicially whether a certain purpose is a public purpose  or not.   There are no express words in section a or any  other section,  to  impose such a duty; nor is there  anything  to compel us to hold that such a duty is implied.  A  reference to section 6 of the Ordinance wherein an inquiry is specifi- cally  provided for with a view to assess  the  compensation and sections 10 and 12 under which the Provincial Government is  empowered to obtain certain information and  enable  its officer  to  inspect  land, show that where  an  inquiry  or anything  like  an inquiry was intended to be  made  it  was specifically  provided for.  There is however  no  provision for  any inquiry being made for determining the public  pur- pose.  Indeed it appears to me that in a large  majority  of

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cases  no inquiry should be necessary as the existence of  a public purpose would, be selfevident or obvious, and a  mere reference  to the purpose will make anyone say: This  is  of course  a  public, purpose.  It may be that just  in  a  few exceptional  cases, legalistic or some other  considerations may  make the position obscure, but in an Act  or  Ordinance which  has  to provide for prompt action and  which  in  its day-to-day  application must be confined to normal  and  not exceptional  cases, the legislature may not attach too  much importance  to  such  cases and may  credit  the  Provincial Government  with  sufficient  intelligence  to  know  before acting  under the Ordinance whether a certain purpose  is  a public purpose or not. However that may be, the fact remains that  there is nothing in the Ordinance to suggest that  the public purpose is to be determined in a judicial way. 642     In this appeal, two principal contentions, which in  the view  I am inclined to take are the only  contentions  which need be referred to, were raised in the course of the  argu- ments,  one  on behalf of the respondent and  the  other  on behalf  of the appellant.  The contention of the  respondent was that the Provincial Government has to act judicially  in determining  the public purpose and its action is  therefore subject to a writ of certiorari if it acts beyond its  legal authority.   The  contention on behalf of the  appellant  is that section 3 empowers the Government to form an opinion on two matters: (1) whether there is a public purpose; and  (2) whether  it  is necessary or expedient in the  interests  of that  purpose to requisition certain premises.   Such  being the  case, the opinion of the Provincial Government on  both these matters is final and cannot be questioned in any court of law.     I have said enough with regard to the first  contention, but  I shall add just a few words more.  For  prompt  action the  executive authoriti.as have often to take  quick  deci- sions  and it will be going too far to say that in doing  so they  are discharging any judicial or  quasi-judicial  func- tions.   The word "decision" in common parlance is  more  or less a neutral expression and it can be used with  reference to  purely executive acts as well as judicial  orders.   The mere  fact that an executive authority has to  decide  some- thing does not  make the decision judicial. It is the manner in which  the decision has to be arrived at which makes  the difference,  and the real test is there any duty to de  cide judicially? As I have already said, there is nothing      in the Ordinance to show that the Provincial Govern ment has to decide  the  existence of a public  purpose   judicially  or quasi-judicially. It is not obliged to call  for or consider any  objections, make any inquiry or hear  evidence, but  it may  proceed  in  its  own way--ex  parte   on  prima  facie grounds,  just to see that it is acting   within the  limits of  the power granted to it. Besides, the  determination  of the public purpose per se does not effect the rights of  any person.  It is only when the further step is taken,  namely, when the Provincial 643 Government forms an opinion that it is necessary or  expedi- ent  in the interests of public purpose to requisition  cer- tain  premises that the rights of others can be said  to  be affected.  In these circumstances, I am unable to hold  that the  Provincial Government has to act judicially  or  quasi- judicially under section 3 of the Ordinance.     The  contention on behalf of the appellant, to  which  I have referred, raises the question as to whether, if certain premises are requisitioned by the Provincial Government  for

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a  non-public purpose, the matter is open to challenge in  a court  of  law.   It is well settled that where  an  Act  or regulation   commits to an executive authority the  decision of  what is necessary or expedient and that authority  makes the decision, it is not competent to the courts to  investi- gate  the grounds or the reasonableness of the  decision  in the absence of an allegation of bad faith.  Therefore, since the  question as to whether it is necessary or expedient  to acquire land (given a public purpose) has been left entirely to the satisfaction of the Provincial Government, the  opin- ion  formed  by  it, provided it is formed  in  good  faith, cannot be questioned.  In other words, if there is a  public purpose,  the  mere fact that to the court or to  any  other person  the  requisition  of the premises  does  not  appear necessary or expedient in the public interest will not  make the requisition bad. But the same cannot be said with regard to  the  decision  of the Provincial Government  as  to  the existence  of a public purpose, which is the  foundation  of its  power and is a condition precedent to its exercise.  If the  executive authority requisitions land under  section  3 without  there  being any public purpose in  existence,  its action  is  a nullity and the position in law is as  if  the authority did not act under section 3 at all. Such being the legal  position, a person whose right is said to  have  been affected can always go to a proper court and ’claim a decla- ration  that in law his right cannot be affected. I  am  not prepared to subscribe to the view that the determination  of a public purpose and the opinion formed as to the  necessity or expediency of requisition 644 form  one  psychological process and not  two  distinct  and independent  steps ;and therefore the rule which applies  to one applies to the other.  The correct position in my  opin- ion  is that the determination of the public purpose is  the first step so that if the Provincial Government decided that there is no public purpose the second step need not  follow. Besides, whereas the subjective opinion of the Government as to necessity or expediency is not capable of being accurate- ly  tested  objectively, the existence of a  public  purpose can  be so tested, because there are well-known  definitions of public purpose and those definitions can form the  common basis for the ascertainment of a public purpose by different individuals.   I  think that the following  dictum  of  Lord Halsbury  in  Mayor etc. of Westminster v.  London  &  North Western Ry. Co.(1), sums up the legal position correctly:   "Where the legislature has confided the power to a partic- ular  body  with a discretion how it is to be  used,  it  is beyond the power of any Court to contest that discretion. Of course, this assumes that the thing done is the thing  which the Legislature has authorised."    A  number of cases were cited before us by the  appellant to  show  that  in construing certain  provisions  in  other enactments which are drafted in similar language, the courts have  held that the existence or otherwise of a public  pur- pose is as completely left to the satisfaction of the execu- tive authority as the question as to whether it is necessary or expedient to acquire land. The leading case in support of this proposition is Wijeyesekara v. Festing (2).  The  deci- sion  of that case turned on the construction of sections  4 and  6 of Ceylon Ordinance No. 3 of 1876, which run as  fol- lows:   "4.  Whenever it shall appear to the Governor that  land in  any locality is likely to be needed for any public  pur- pose,  it  shall be lawful for the Governor  to  direct  the Surveyor-General  or  other officer generally  or  specially

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authorized  by the Governor in this behalf, to examine  such land and report whether the same is fitted for such purpose.  (1) [1905]- A.C. 426.             (2) [1919] A.C. 646. 645     6.   The Surveyor-General  or other  officer as  author- ized  as aforesaid shall then make his report to the  Gover- nor,  whether the possession of the land is needed  for  the purposes for which it appeared likely to be needed as afore- said.   And  upon  the receipt of such report  it  shall  be lawful  for the Governor, with the advice of  the  Executive Council,  to direct the Government Agent to take  order  for the acquisition of the land."     It  appears that the procedure prescribed by  the  Ordi- nance  in the above sections was followed and an  order  was made  by  the Governor of Ceylon  directing  the  Government Agent  to make an order for the acquisition of certain  land for   a  public purpose, namely, the making of a road.   The appellant  to  the Privy Council, who was the  person  whose land  had been  acquired, contended that the land  was   not required  for any public purpose and that the  direction  of the  Governor was invalid.-The Privy Council  repelled  this contention and held that it was not open to the appellant to contend  that the land was not needed for  a   public   pur- pose.  Lord Finley  who delivered the judgment of the  Board quoted  with  approval  a previous decision  of  the  Ceylon Court,  Government Agent v. Perera (1), in which  the  first two paragraphs of the headnote run as follows:     "In  the  acquisition  of a private land  for  a  public purpose, the Governor is not bound to take the report of the Surveyor-General as to the fitness for such a purpose.   His decision on the question whether a land is needed or not for a  public  purpose is final, and the District Court  has  no power   to   entertain  objections   to   His   Excellency’s decisions."     In  my  opinion, this case does not go so far as  it  is supposed to have gone and it is apt to be misunderstood  and misapplied.  The land was acquired there for the purpose  of making  a road, and it could not have been argued  that  the making of a road was not a public purpose.  The emphasis was on whether the land was (1) 7 Cey. N.L.R. 313. 646 actually  needed or wanted for a public purpose and  not  on the  character of the purpose and their Lordships held  that the  question whether the land was or was not needed  for  a public  purpose  had been left to the  satisfaction  of  the executive  authority.  It seems to me that if the  land  had been acquired not for the purpose      of making a road  but for  a purpose which was evidently not a public  purpose  at all,  the  courts could not have held  that  the  Governor’s action  in acquiring the land for a non-public purpose   was not open to challenge.     I  do not wish to refer to cases decided under the  Land Acquisition Acts, such as Ezra v. Secretary of State (1) and others because, apart from other things, as was pointed  out by  the  Privy  Council in the course of  the  arguments  in Wijeyesekara v. Festing (2) the Indian Land Acquisition Acts expressly  provide  that the order of the  local  Government directing the acquisition of land is conclusive.      A third class of cases are those arising under  certain war  and emergency laws, of which Carltona Ltd.  v.  Commis- sioners of Works and Others (3) may be taken to be a  speci- men.   That case was decided under regulation 51 (1) of  the Defence (General) Regulations which ran as follows:      "A competent authority, if it appears to that authority

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to  be necessary or expedient so to do in the  interests  of the public safety, the defence of the realm or the efficient prosecution  of  the war, or for  maintaining  supplies  and services  essential to the life of the community,  may  take possession  of  any land, and may give  such  directions  as appear to the competent authority to be necessary or expedi- ent  in  connection with the taking of  possession  of  that land."      In that case’ and other similar cases, it was held that the Parliament had completely entrusted to the executive the discretion of deciding when it would be necessary or expedi- ent to requisition land in the (1)I,L.R. 30 Cal. 36.        (3) [1943] 2 All E.R. 560. (2) [1919] A.C. 646. 647 interests of public safety, the defence of the realm,  etc., and therefore with that discretion if bona fide exercised no court could interfere.  It is clear that the relevant provi- sions  under  which those cases have been decided  refer  to matters  such as interest of public safety, defence  of  the realm, efficient prosecution of the war, etc., of which  the executive  authorities alone could be the best  judges.   So far  as these matters are concerned, it is difficult to  lay down  an objective test for determining when the  conditions upon  which the executive authorities are to act  should  be deemed  to be fulfilled. Thus there is no  true-analogy  be- tween  this  case and the case before us. An analogy  to  be complete  must rest not only on similarity of  language  but also  on  similarity of objects. In certain  complicated  or border-line  cases,  the  courts may find  it  difficult  to decide  whether a certain matter has been committed  to  the judgment  of the executive authority and made  entirely  de- pendent  on  its satisfaction or whether it is  a  condition precedent to the exercise of its jurisdiction or power.  The line of demarcation between these two matters may appear  to be  a  thin  one but it has to be drawn for  arriving  at  a correct conclusion.     As  I  have  already stated, a petition for  a  writ  of certiorari can succeed only if two conditions are fulfilled: firstly,  the order to be quashed is passed by  an  inferior court  or  a person or authority exercising  a  judicial  or quasi-judicial function, and secondly, such court or  quasi- judicial  body has acted in excess of its  legal  authority. The second element would seem to be present in this case  on the  concurrent findings of the three Judges of  the  Bombay High Court which are clear and well-reasoned.  But that does not seem to be enough for the purpose of granting a writ  of certiorari  to the respondent, since the  requisitioning  of the  premises under section a of the Ordinance was a  purely administrative  act and did not involve any duty  to  decide the existence of a public purpose or any other matter  judi- cially or quasi-judicially.  The remedy of the respondent is clearly by action and not by asking Iota writ of certiorari. In the circumstances, the 648 further points raised in the case do not call for  decision, and  I agree that this appeal should be allowed.   It  would however be for the Provincial Government to consider whether in  view  of  the findings of the Bombay High  Court  it  is desirable to pursue the matter any further.     PATANJALI SASTRI J.--I  agree  that the appeal should be allowed for the reasons indicated in the judgment of my Lord and have nothing useful to add.            MEHR CHAND MAHAJAN J.--I agree with the  judgment which  my brother Mukherjea proposes to deliver and wish  to

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add  some observations of my own out of respect for my  Lord the Chief Justice from whose judgment we feel constrained to differ. The  principal  questions  raised by this  appeal  are:  (1)    Whether  the  order of  requisition dated  26th  February 1948  made  under section 3 of the Bombay  Land  Requisition Ordinance  (Ordinance  No. V of 1947)  is  a  quasi-judicial order ?  (2)  Whether a writ of certiorari lies against the  Gov- ernment of Bombay ?     (3)  Whether the High Court has jurisdiction to issue  a writ of certiorari against the Provincial Government ?     (4)  Whether  the requisition of the said flat  and  its allotment to Mrs. C. Dayaram, a refugee from Sindh, was  for a public purpose ?     The  case of the appellant is that the said  requisition order  is an administrative order, hence no writ of  certio- rari can issue, that no writ of certiorari lies against  the Provincial Government, that the High Court has no  jurisdic- tion  to issue a writ of certiorari against  the  Provincial Government which in law means and includes the Governor  and that  the requisition and the allotment of the said flat  to Mrs. C. Dayaram was for a public purpose.     It is well settled that a writ of certiorari lies if the order complained of is either a judicial or a quasi-judicial order but iris not competent if the order is 649 an administrative or an executive order.  The  circumstances under which a writ of certiorari can be issued are succinct- ly stated by Atkin L.J. in Rex v. Electricity  Commissioners (1) in these terms:     "Whenever any body of persons having legal authority  to determine  questions affecting the rights of  subjects,  and having  the duty to act judicially, act in excess  of  their legal authority, they are subject to the controlling  juris- diction  of  the King’s Bench Division  exercised  in  these writs."     It  was  said in Rex v. London County Council  (2)  that four conditions have to be fulfilled before a writ of certi- orari  can issue, (1) there must  be a body of persons,  (2) it must have legal authority to determine questions  affect- ing the rights of subjects, (3) it has the duty laid upon it to  act judicially, and (4) it acts in excess of  its  legal authority.     The  learned  trial Judge as well as the Judges  of  the court  of  appeal have not in any way  departed  from  these conditions.   On the other hand, they have stood  firmly  by them.   Mr. Justice Bhagwati, the learned trial  judge,  ob- served  that it is only when these conditions are  fulfilled that  the  body  of persons is subject  to  the  controlling jurisdiction of the King’s Bench Division exercised in these writs.   In  the court of appeal the learned  Chief  Justice said that the very basis and foundation of the writ is  that the act complained of must be a judicial or a quasi-judicial act.  The  fundamental  rules governing the  writ  were  not disputed before us during the course of the arguments.   The real  controversy  centered  round the definition of a judi- cial  and  a  quasi-judicial act as  distinguished  from  an administrative  or  a  purely ministerial act.  The question is  where to draw a line which demarcates the  executive  or purely  administrative act from a quasi-jUdicial or a  judi- cial  act.  The  learned Chief Justice in  the  court  below summed  up  the result of the authorities on  the  point  in these terms:     "In the first place, a duty must be cast by the legisla-

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ture upon the person or persons who is or are (1) [1924] 1 K,B. 171 at 205.          (2) [1931] 2 K.B. 215 at 243. 650 empowered to act to determine or decide some fact or  facts. There must also  be some lis or dispute resulting from there being  two  sides to the question he has to  decide.   There must be a proposal and an opposition.  It must be  necessary that he should have to weigh the pros and cons before he can come to a  conclusion.  He would also have to consider facts and circumstances bearing upon the subject.  In other words, the  duty  cast must not only be to determine and  decide  a question,  but  there must also be a duty  to  determine  or decide that fact judicially."     The  statement of the law seems unexceptionable.  It  is based on high authority. The classic definition of the  term "judicial" was given by May C.J. in The Queen v. The  Corpo- ration of Dublin (1), and this definition is in these terms:     "It is established that the writ of certiorari does  not lie  to remove an order merely ministerial, such as  a  war- rant, but it lies to remove and adjudicate upon the validity of  acts judicial.  In this connection the term  ’judicial.’ does not necessarily mean acts of a Judge or legal  tribunal sitting for the determination of matters of law, but for the purpose  of this question a judicial act seems to be an  act done by competent authority, upon consideration of facts and circumstances;  and  imposing  liability  or  affecting  the rights of others."     These  observations  of  May C.J. were  quoted  by  Lord Atkinson  in Frome United Breweries v. Bath Justices (2)  as "one  of the best definitions of a judicial act  as  distin- guished from an administrative act." They seem to have  been approved by Lord Greene M.R. in Rex v. Archbishop of Canter- bury C). In Rex v. Woodhouse(4) Lord Fletcher Moulton L.  J. observed as follows:     "The  term   ’judicial act’ is  used  in  contrast  with purely  ministerial  acts.  To these latter the  process  of certiorari does not apply, as for instance to the issue  ’of a  warrant  to enforce a rate, even though the rate  is  one which  could itself be questioned by certiorari.  In  short, there must be the exercise of some right or duty in   (1) (1878) 2 L.R. Ir. 371.         (3) [1944] 1 K.B. 282.   (2) [1926] A.C. 586.               (4) [1906] 2 K.B. 501. 651 order  to provide scope for a writ of certiorari  at  common law."     In Jugilal Kamlapat v. The Collector of Bombay(1)  Bhag- wati  J. after  a consideration of a number of  English  au- thorities  reached the conclusion that the phrase  "judicial act" must be taken in a very wide sense including many  acts that  would  not ordinarily be termed judicial.   The  cases cited at the Bar fully bear out this conclusion.   Reference may be made to The King v. Postmaster General (2), where  it was  held that the giving of a certificate by a medical  man was  of the nature of a judicial act, and that the  certifi- cate  was a proper object of proceedings by way  of  certio- rari.  By the effect of section 1 sub-section (1) (i) of the Workmen’s Compensation Act, 1925, and an order extending its provisions  to include telegraphists’ cramp, a  post  office workman obtaining the certificate of the certifying  surgeon that  he was suffering from that complaint and  was  thereby disabled, was entitled to compensation. By section 44,  sub- section (3), a medical practitioner appointed by the  Secre- tary of State was given the powers and duties of a  certify- ing  surgeon.   An order made by the Secretary of  State  in

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pursuance  of that sub-section provided that so far  as  re- gards post office employees the post office medical  officer under whose charge the workman was placed shall, if  author- ized  to act, be substituted for the certifying  surgeon  in cases  of telegraphists’ cramp.  It was the practice of  the post  office to refer all cases of telegraphists’  cramp  to the Chief Medical Officer of the post office and this refer- ence  was relied on as constituting him the  substitute  for the  certifying  surgeon  under the  above  sub-section  and order.  The applicant in that case claimed compensation  for telegraphists’ cramp and the case  was referred to the Chief Medical  Officer in accordance with the usual practice.   He certified  that  she was not suffering  from  telegraphists’ cramp. It was the giving of this certificate that was treat- ed  in  the nature of a judicial act. Lord Hewart  C.J.  ob- served as follows: (1) (1945) 47 Bom. L.R. 1070.                 (51) [1928]  1 K.B, 291. 652     "There was a moment in this case when it was argued that the document was of such a kind as not to be proper for  the writ of certiorari.  But I am satisfied, when     I look  at the part which a certificate of this nature must play in the making of any claim for compensation by a post office worker suffering from telegraphists’ cramp, that the certificate of the  certifying surgeon is of the nature of a judicial  act, and  is a fit subject for certiorari."    In Rex v.  Boycott (1) certification as to mental deficiency of a boy was  held to be a quasi-judicial act within the mischief of the remedy of  certiorari. By section 31 of the Mental Deficiency  Act, 1913,  it is provided that in case of doubt whether a  child is  or is not capable of receiving benefit from  instruction in  a special school or class, or whether his  retention  in such  school or class would be detrimental to the  interests of  the other children, the matter  shall be determined   by the  Board  of Education.  A certificate that  the  boy  was incapable  by reason of mental defect, of receiving  further benefit  from instruction in a special school or  class  and was  an  imbecile was issued by the  medical  officer.   The father of the boy moved for an order of certiorari to remove and quash the certificate.  Lord Hewart C.J. in issuing  the writ made the following observations:    "In my opinion, on the facts of. this case, this certifi- cate of October 5, 1938, created in the way in which we know that  it was created, purported to be and to’ look like  the decision of a quasi-judicial authority."   Reliance was placed on the observations of Atkin L.J. in Rex v. Electricity Commissioners(2)     In The King v. The London County Council (3), a writ  of certiorari  was issued to the London County Council who  had exercised  the power to grant a licence under the  Cinemato- graph Act, 1909, and had given permission to open the  prem- ises on a Sunday under the Sunday Observance Act, 1780.   By section  2, sub-section (1) of the Cinematograph Act,  1909, it was provided that (1)  [1939]  2 K.B. 651.(2) [1924] 1  K.B.  171.         (3) [1931] 2 K.B. 615. 653 a county council may grant licences to persons to use  prem- ises for the exhibition of pictures or other optical effects by  means  of a cinematograph on such conditions  and  under such restrictions as the council may determine.  The council had  also power to modify or waive any of the conditions  or restrictions  attached  by    the council  to  the  licence. Section 1 of the Sunday Observance Act, 1780, provided  that

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any house, room or other place which shall be opened or used for  public entertainment or amusement upon any part of  the Lord’s  Day  called Sunday, and to which  persons  shall  be admitted  by the payment of money, shall be deemed a  disor- derly  house.  A company applied for a licence to  open  and use  premises for cinematograph entertainments and also  for permission  to open the premises for such purposes  on  Sun- days, Christmas Day and Good Friday. In compliance with this application  the  county council made an  order  accordingly provided  a sum of      pound 35 was paid to charity in  re- spect of each Sunday, Christmas Day or Good Friday.   Scrut- ton  L.J.  in issuing the writ made the  following  observa- tions:      "It is quite clear that every proceeding of  magistrates or  confirming authorities in granting new or  renewing  old licences is in the nature of a Court, excess of jurisdiction in  which can be dealt with by the writ of  certiorari;  and the procedures in granting licences under the  Cinematograph Act,  and proceedings consequential thereon appear to me  to stand  exactly  on the same footing as  the  proceedings  of magistrates or confirming authorities dealing with  licences for public houses.  When the question is, on what terms  and conditions shall a licence be granted, and when the  commit- tee proceeds to require that notice of the proposal shall be given,  and to hear the applicant and his opponents, and  to take evidence, the proceeding seems to me to be exactly that of  a tribunal which the King’s Bench Division, by the  writ of certoirari, restrains within its jurisdiction."     Slesser  L.J. in the same case discussed this matter  at some  length and in the concluding portion of  the  judgment made the following observations: 654     "The legal authority is clearly given by the section  to grant  the licences, and I have pointed out how  it  affects the rights of the subject. But the third question is the one which  was most strenuously debated in the  argument  before us:   Are the Council under a duty to act judicially? It  is said that what has here been done is not a judicial act,  or not an act of an administrative body having judicial  duties to   perform, but is in substance an administrative act  for the review of which the writ of certiorari is not  appropri- ate.   I am unable to distinguish in principle  between  the application for a licence under the Cinematograph Act, 1909, and  an  application  made with regard to a  licence  for  a public  house,  which for many years, as to  the  Confirming Authority, and later, as to the whole proceedings, has  been held  to  be a judicial act. It was suggested, so far  as  I understood the argument which attempts to differentiate this application from an application for a public house  licence, that  there is not provided in terms in s. 2  any  provision for  opposition; and that is perfectly  true.  There  is  an obligation  to notify the police, but there is not in  terms there any provision for dealing with opposition, though  the County  Council  have  made an elaborate  code  under  which opposition  may  be heard. I have  examined  other  statutes which similarly contain powers to grant licences, but do not in terms mention opposition,.and I find that in one, at  any rate,  the action of the magistrates was treated as a  judi- cial  act, although the statute contained no express  provi- sion for opposition.  Reg. v. Justices of Walsall (1) is  an authority  that where, on the face of it, it appears that  a licence  is  to  be granted to certain persons  and  not  to others, conferring upon them certain rights and obligations, the mere fact that the statute does not in terms provide for opposition to be heard, does not any the less make the  duty

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of the magistrates a judicial duty and therefore it is clear that  they  were acting or purporting to act  judicially  in hearing  this application, assuming that it was an  applica- tion,  to modify the licence. Of course, as was pointed  out by Greer L.J. in the course of the (1) [1854] 3 W.R.  69 655 argument,  unless  the body was usurping a  jurisdiction  or acting  contrary to their juridical powers, it would not  be necessary  to have a certiorari at all; and to  argue  that, because they have gone beyond their powers, therefore certi- orari would not lie, would be to defeat the whole purpose of the  writ.  But the question is, have they  purported  under the  statute,  and have they a duty under  the  statute,  to perform  a  judicial function in  hearing  applications  for these licences ? In my opinion they certainly have."     The learned Attorney-General cited the case  of Franklin v. Minister of Town and Country Planning(1), for the  propo- sition  that the mere circumstance that an enquiry may  have to  be made publicly and objections may have to be heard  of persons affected does not necessarily convert the act into a judicial  or quasi-judicial act.  That case related  to  the functions of a Minister under the Town and Country  Planning Act  and the New Towns Act, 1946. Lord Thankerton  made  the following observations:     "In my opinion, no judicial, or quasi-judicial duty  was imposed  on  the respondent, and any reference  to  judicial duty,  or bias, is irrelevant in the present case.  The  re- spondent’s  duties  under  section 1 of the  Act  and  Sch.1 thereto,  are in my opinion purely administrative,  but  the Act prescribes certain methods of or steps in, discharge  of that  duty.  It  is obvious that, before  making  the  draft order,which  must contain a definite proposal  to  designate the area concerned as the site of a new town, the respondent must  have made elaborate inquiry into the matter  and  have consulted  any  local authorities who appear to  him  to  be concerned,  and obviously other departments of  the  Govern- ment,  such as the Ministry of Health, would  naturally  re- quire  to be consulted.   It  would seem, accordingly,  that the respondent was required to satisfy himself that it was a sound  scheme before he took the serious step of  issuing  a draft  order.   It  seems clear also, that  the  purpose  of inviting  objections, and, where they are not withdrawn,  of having a public inquiry, to be held (1) [1948] A.C. 87. 656 by  someone other than the respondent, to whom  that  person reports, was for the further information of the  respondent, in order to the final consideration of the soundness of  the scheme of the designation; and it is important to note  that the  development of the site, after’ the order is  made,  is primarily  the  duty of the development  corporation  estab- lished  under section 2 of the Act. I am of opinion that  no judicial  duty  is laid on the respondent  in  discharge  of these statutory duties, and that the only question is wheth- er he has complied with the statutory directions to  appoint a  person to hold the public inquiry, and to  consider  that person’s report."     In  view  of these authorities all that can be  said  is that there is an indefinable,  yet  an  appreciable, differ- ence  between  the  doing of an executive or  administrative act  and a judicial or a quasi-judicial act.  The  question, however,  whether an act is a purely ministerial or a  judi- cial  one  depends on the facts and  circumstances  of  each case.   As observed by my brother Das in re  Banwarilal  Roy

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(1),  the question whether an act is a judicial or a  quasi- judicial one or a purely executive act depends on the  terms of the particular rule, the nature, scope and effect of  the particular  power in exercise of which the act may be  done. In  the actual application of the abstract  propositions  to the  circumstances  of  different  cases  the  exercise   of jurisdiction to issue a Writ of certiorari varies  according to the foot of the Chancellor.     The  question  therefore for decision in  this  case  is whether  the  Government is a body of persons  having  legal authority  to  determine questions affecting the  rights  of subjects, and secondly, to the extent to which it has and in performing that duty has it the duty to act judicially.   In my opinion, the position and duties of the Government  under the  Bombay  Land  Acquisition Ordinance are  such  that  it satisfies  both  the tests. It is a body of  persons  having legal authority to determine questions affecting the  rights of subjects and I (1) (1944) 48 C.W.N. 766 657 think  its duty is to act judicially.  It cannot  arrive  at its determination on a mental process of its own.     An examination of the provisions of this Ordinance shows that  before  the Government forms the opinion  that  it  is necessary  and expedient to requisition any land it  has  to determine the following questions of fact and law-- (1) whether the land is required for a public purpose;     (2) whether the land, the subject matter of the requisi- tion is being used for public religious worship;     (3)  whether the land which it is intended  to  requisi- tion  is being used for a purpose which the Provincial  Gov- ernment has specified by a notification; and   (4) whether the premises are vacant premises.    All these questions are mixed questions of law and  fact. No precise definition of the phrase "public purpose" can  be attempted and none has been given in judicial decisions.  It was, however, observed in Hamabai Premjee Petit v. Secretary of State for India (1) that in order to constitute a "public purpose"  in taking land it is not necessary that  the  land when  taken is to be made available to the public at  large, but  that it includes a purpose, that is an object in  which the  general  interest of the community as  opposed  to  the particular  interest  of  the individuals  is  directly  and vitally  concerned.   It was said in that  case  that  prima facie the Government are good judges of the question whether the  purpose  is one in which the general interests  of  the community  is  concerned  but that  they  are  not  absolute judges,  that is, they cannot say "I desire it, therefore  I order  it". Under the proviso the question whether the  land is being used for public religious worship is again a matter which  involves difficult questions of fact and law and  the determination of these questions may seriously affect  legal rights of worshippers, trustees and other people  interested in a place of worship. Similarly the question 658 whether  the premises are vacant is a matter that has to  be determined  in view of the definition of  "vacant  premises" given  in section 4.  It involves the determination  of  the question  whether the vacancy was caused by the  termination of  a  tenancy, or by the eviction of a tenant,  or  by  the release  of the premises from requisition, etc.  A duty  has been cast on the landlord to give information of the vacancy of a premises to Government and any failure in the  perform- ance of that duty is punishable under the law. The  determi- nation  by the Government that certain property is  required

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for a public purpose and therefore in its opinion it  should be  requisitioned  entitles the person  whose  premises  are requisitioned  to  a right to compensation which has  to  be determined admittedly in a judicial manner under the  provi- sions of the Act. The point therefore arises whether it  was intended  by  the  provisions of the order  that  all  these questions of fact and law which have to be determined before Government forms an opinion as to the expediency or necessi- ty  of requisitioning certain premises, were to  be  subjec- tively  determined  and  the rights of persons  were  to  be affected  merely  on  the opinion of   the  Government;  or. whether  the  determination   was intended to be of a  judi- cial  or quasi-judicial nature; in other words, whether  the determination of these important questions has to be in  the infinite  mind of the Government or is in the truth  of  the facts  themselves.  Are these questions to be determined  by the mental operations or the idiosyncracy of the officers of Government  or does their determination depend on  existence of material facts ? If the decision of all the questions  is to be arrived at by a subjective process, then there can  be no doubt that the act of the Government in making the requi- sition  will be a  purely ministerial act and will not  fall within  the  mischief of the writ; if, on  the  other  hand, these questions of fact and law have to be determined objec- tively, then the inference is irresistible that the determi- nation will be of a judicial nature.  The method and  manner of reaching it will be a judicial process.  It will consider 659 a  proposition and an opposition;both sides of the  question will have to be considered, i.e., the Government’s point  of view as well as the point of view of the person affected and the  determination would only be reached on a  consideration of  facts  and circumstances. The line of  approach  in  the matter  is,  does section 3 of the Ordinance  contemplate  a thinking on the part of the Government that the place is not being  used for the purpose of public religious worship,  or does it contemplate a finding on facts that the place is not a  place  of  public worship.  As stated by  Lord  Atkin  in Liversidge  v.  Sir  John Anderson C),  does  the  Ordinance contemplate a case of a thinking that a person has a  broken ankle  and not a case of his really having a broken ankle  ? Similarly, can it be said that section 4 contemplates merely a  vacancy in the mind of the Government, not a  vacancy  in fact  as a real thing. After a careful consideration of  the matter I have no hesitation in holding that these  questions are not questions for the mere determination of the  Govern- ment  subjectively  by its own opinion but  are  matters  of determination  objectively.  That being so,  the  determina- tion  of  these  questions depends on  materials  which  the Government  have  sufficient  power to call  for  under  the Ordinance.   It  is not only the duty of the  Government  to determine these questions but its duty is to determine  them in a judicial manner, that is, by hearing any opposition  to the proposal and by placing its determination on some  mate- rials  which it has called for under the provisions of  sec- tion  10 or 12 of the Ordinance.  The determination  affects valuable rights of persons as to property, it affects rights of  worship  and any such determination may  entail  serious consequences. The case-The King v. Bradford (2) furnishes an apposite illustration.  In that case authority was given  to take  materials  for a period of five years from  a  certain enclosed  land which in the opinion of the High Court was  a park.   It was held that the justices could not  by  wrongly deciding that the land was not a park give themselves juris- diction in the matter.  In

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660   my  opinion, the Government by wrongly deciding  that  the place  is  not  a place of  public  worship  cannot  acquire jurisdiction  for  requisitioning  the  land. Similarly they cannot  by describing a private purpose as a public  purpose acquire  jurisdiction to make an order of requisition.   The Ordinance contemplates the making of necessary enquiries and enabling  provisions have been made in it  for  facilitating them.   It seems that a duty is cast on  Government   before reaching  its  decision on such important  matters  to  make enquiries  and  hear persons concerned.  Though  no  express provision  exists  that objections have to  be  heard,   the power  given  under section 12 to make  enquiries  from  the person  occupying the premises or owning them show  that  no sooner  enquiries are made all that a person has to  say  on the matter will be said and heard.     For  the  reasons  given above I cannot  accede  to  the contention  of the learned Attorney-General as to  the  con- struction of  section3  of  the Ordinance when he says  that it  means that the determination  of "public purpose"  is  a matter  which  rests  in  the opinion  of   the   Government alone   and that the decision of the facts mentioned in  the proviso  also depends on that opinion.  I cannot also  agree in the contention that even if these matters required deter- mination  objectively, they can be so determined  by  making administrative  enquiries and without hearing  persons  con- cerned.   In  my judgment the learned trial Judge as well as the  Judges  of  the Court of appeal   reached   a   correct decision   in this  case which is a case on the border  line and I do not think  that  there are any  substantial grounds for reversing their well considered decision.     As regards the second question, I have no hesitation  in holding  that a writ of certiorari lies against the  Govern- ment  of Bombay. Section 306, read with section 176  of  the Government of India Act, 1935, expressly preserves the right to sue in all cases where such a right could be exercised as against the East India 661 Company.   The  learned  Attorney-General  argued  that  the section  was  confined to suits and to actions and  did  not cover  the case of a writ of certiorari.  It was  said  that there  is no power to issue a command to the Sovereign.   My simple  answer is that the Provincial Government is not  the sovereign  and  that the Government of India  Act  expressly says that there is a right to sue the Province.  The expres- sion  "sue"  means "the enforcement of a claim  or  a  civil right  by means of legal proceedings."  When a right  is  in jeopardy, then any proceedings that can be adopted to put it out  of  jeopardy  fall within the  expression  "sue".   Any remedy that can be taken to vindicate the right is  included within the expression.  A writ of certiorari therefore falls within  the  expression  "sue" used in section  176  of  the Government  of India Act, 1935, and the remedy therefore  is within  the  express  terms of the  statute.   The  immunity granted  by  section 306 is to the Governor and not  to  the Province.   It  was argued that the word "Governor  "in  the section is synonymous with "Provincial Government" by reason of  the  definition of the phrase   "Provincial  Government" given  in section 46 (3) of the General Clauses Act.  In  my opinion, this definition cannot affect the interpretation of the  Government  of india Act.  In that Act  the  Provincial Government and the Governor have been used in two  different senses and not in one sense. Immunity from suits is given to the Governor and not to the Provincial Government,though the Governor may be one of the important component parts of  the

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Provincial Government. Reference in this connection was made to the East India Company Act, 1780 (21 Geo. 3, c. vii), and to various statutes which eventually culminated in  sections 306  and 176 of the Government of India Act, 1935.   On  the basis  of  the Act of 1780 it was contended  that  the  High Court had no jurisdiction to issue a writ against the Gover- nor. That statute, however, did not prohibit the issue of  a writ  against  the East India Company.  On the  other  hand, there are caSeS which show that such writs were being issued against the East India Company. In my opinion, the 662 matter has to be decided exclusively under the terms of  the Government  of India Act, 1935, and not on the terms of  any repealed  statute.  Clauses 4 and 13 of the Charter  of  the Supreme  Court gave the power to issue a writ of  certiorari to  the  High Court against the East India Company  and  the same  jurisdiction has been kept alive by the Government  of India  Act., 1935. Reference was made to a number of  Madras cases but, in my opinion, those cases have not been correct- ly decided inasmuch as they have placed the Governor on  the same  footing as the Provincial Government by a  process  of reasoning which to my mind is not correct.     On  the  merits  of the case whether  the  land  in  the present  case was required for a public purpose, there is  a concurrent finding of fact to the effect that the object  of this requisition was to benefit an individual and no  public purpose  was involved in it. That being so, the writ was  in my  opinion properly issued in this case and the  appeal  is without force.  I would accordingly dismiss it with costs.           MUKHERJEA   J.--This  appeal is on behalf  of  the Province of Bombay  and is directed against the judgment  of an  appellate Bench of the Bombay High Court (consisting  of Chagla  C.J.  and Tendolkar J.) dated January  4,  1949,  by which  the learned Judges affirmed an order of  Bhagwati  J. dated September 27, 1948, in so far as it granted a writ  of certiorari, for bringing up and quashing a requisition order made  by the Provincial Government  under section a  of  the Bombay Land Requisition Ordinance (V of 1947). There is  not much  controversy  about  the facts of the  case  which  lie within  a short compass. The requisition order was  made  by the  Province of Bombay on February 26, 1948, in respect  of the  first floor of a building known as "Paradise"  situated at 22, Warden Road, Mahalakshmi, Bombay.  The entire  build- ing is owned by one Dr. M, B. Vakil, and one Abdul Hamid was in occupation of the first floor as a tenant under Dr. Vakil prior  to January 29, 1948.  Abdul Hamid intended to  go  to Pakistan and was on the look out for 663 some premises at Karachi where he might reside and carry  on business.   The  petitioner  Khusal Das, who  was  the  main respondent in this appeal and is now dead and represented by his  heirs,  was  a refugee from Karachi where  he  owned  a Bungalow  worth  more  than Rs. 50,000 and  also  a  running business in which a considerable sum of money was  invested. On  29th January, 1948, there was an agreement entered  into by  and between Abdul Hamid on the one hand, and  the  peti- tioner  Khusal  Das, his son Gobind Ram  and  his  brother’s daughter’s  son Hiranand on the other, by which  the  former assigned to the latter his tenancy  right in the first floor of  the  Paradise  in exchange of his  getting  a  leasehold interest in the petitioner’s Bungalow at Karachi. There were other terms of this transaction  which are not relevant  for our present purpose. The petitioner went into possession  of the  flat  on February 4, 1948.  On February 26,  1948,  the Government  of  Bombay issued an  order  requisitioning  the

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flat,  the  order being made under section 3 of  the  Bombay Land  Requisition  Ordinance (Ordinance No. V of 1947) which came into force on and from the 4th of December, 1947.   The order was signed by Mr. P.L. Rao as Secretary to the Govern- ment  of Bombay, Health and Local Government Department.  On the same day a letter was addressed by Mr. Rao to Dr.  Vakil intimating to him that the said flat had been  requisitioned as per copy of the Requisition Order enclosed therewith  and that Government had allotted the flat to one Mrs. C. Dayaram at  a  rental of Rs. 85 per month. Mrs. Dayaram, it  may  be mentioned  here, was also a refugee from Sind.  On  February 27, 1948, a further order was passed under the signature  of Mr. Rao authorising one Lalwani, an Inspector in the  Health and Local Government Department of the Government of Bombay, to  take  possession  of the requisitioned  flat  under  the provision of section 9 of the Requisitioning Ordinance.   On March  4, 1948, the petitioner Khusal Das filed an  applica- tion  in the Original Side of the Bombay High Court  against P.L. Rao, Secretary to the Government of Bombay 664 as  party respondent alleging that the order of  requisition was  illegal and ultra vires on various grounds and  praying for  writs  of certiorari, prohibition and  an  order  under section 45 of the Specific  Relief Act against the  respond- ent.   On  this   application,  an  interim  injunction  was granted  by Coyajee J. restraining the Government  from  ob- taining possession of the   flat.  By a subsequent amendment of’ the petition the Province of Bombay, as well as Mr. G.D. Vartak,  the  Minister-in-charge  of the  Health  and  Local Government  Department were added as parties respondents.  A large number of  defenses  were  taken by the respondents in answer  to the prayers of the petitioner. It  was  contended inter  alia that the orders  made under the  Ordinance  were not judicial or quasi-judicial orders, but executive  orders made by the Province of Bombay and no writs of certiorari or prohibition  would lie against orders of  this  description. On behalf of Mr. Rao, it was urged that he did not make  any order  himself and had merely authenticated and  signed  the orders  in accordance with the provisions of section 59  (2) of the Government of India Act.  As regards the Province  of Bombay  a  point  was taken that no  writ  could  be  issued against  the Provincial Government which meant and  included the  Governor  of  the Province, he being  immune  from  all proceedings in, and processes from any court of India  under section  306 of the Government of India Act.   The  Minister respondent, it was said, was not personally responsible  for the orders or for the consequences thereof under the Consti- tution.   It was contended further that the  requisition  of the  flat, and the allotment of it to Mrs. Dayaram were  for public purpose.  The petition was heard by Bhagwati J.,  who overruled all the contentions of the respondents and granted the  petitioner’s prayer.  Writs of certiorari and  prohibi- tion were directed to be issued against all the respondents, and  there  were  also orders of  mandamus  granted  against respondents other than the Province of Bombay.  Against this decision an appeal was taken to the appeal Bench of the High Court (being 665 Appeal  No. 65 of 1948) and the appeal was heard  by  Chagla C.J.  and  Tendolkar J.  By their judgment dated January  4, 1949, the learned Judges allowed the appeal in favour of the two  respondents other than the Province of Bombay  and  set aside the orders made  against  them.  They affirmed however the  judgment  of Bhagwati J., so far as it related  to  the Province  of Bombay, and maintained the writ  of  certiorari

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issued  against it.  The Province of Bombay has now come  up on appeal to this Court.     The  learned Attorney-General who  appeared  in  support of the appeal contended before  us,  that having  regard  to the provisions of the Ordinance under  which  the   requisi- tion order  was   made no writ of certiorari would be at all available   in law.  It has been argued in the  first  place that the order complained of is a ministerial or administra- tive   order   which  does  not  involve   exercise  of  any judicial or quasi-judicial function and to a purely adminis- trative order of this character no writ of certiorari  lies. It  is  argued  in the alternative that  assuming  that  the Provincial  Government  has  any  semijudicial  function  to exercise while making an order under section 3 of the  Ordi- nance, the question as to whether the requisition was for  a public  purpose  or not, was a question of  fact  which  the Provincial Government was competent to entertain and decide, under  the  terms of the Ordinance itself, and  no  writ  of certiorari would lie to bring up an order of the  Provincial Government on the ground that its decision on this point was erroneous  or  unsound.  Lastly, it is  contended  that  the Provincial Government is immune from all court processes and no writ of certiorari could be issued to it.     The  first and the second points are  really  inter-con- nected, and I may have to discuss them together. They  raise questions of considerable nicety and general importance, and we   had  arguments of      the  most  elaborate   character advanced  on  them  by  the learned counsel on both sides. 666     The first and the most important point for our consider- ation  is whether the act of requisition against  which  the writ  of certiorari has been issued by the High Court  is  a judicial  or an administrative act. It is not disputed  that the  writ  does  not lie to remove an act  which  is  purely ministerial.  It can be availed of only to remove and  adju- dicate  on the validity of judicial acts (1).  To  ascertain the  exact connotation of the expression "judicial  act"  in connection  with the issuing of a writ of certiorari and  to determine whether the act complained of in the present  case is  a judicial act or not it would be necessary and  conven- ient  to  set out briefly how the law on the  point  as  de- veloped by the Courts in England stands at present.  A  writ of  certiorari  like the writ of prohibition is  a  judicial writ  of antiquity and it is the ordinary process  by  which the  Court of King’s Bench Division exercises  control  over the  acts of bodies vested with inferior  jurisdiction.  The writ  is  intended  to bring up before the  High  Court  the records of proceedings or determinations of inferior  tribu- nals  and to quash them if the tribunals  are found to  have acted in excess of their jurisdiction.     It  is  well  settled that the writ is  not  limited  to bringing  up the acts of bodies that are ordinarily  consid- ered  to  be Courts.  "The procedure of certiorari"  as  has been  observed by Fletcher Moulton L.J. in Rex v.  Woodhouse (2) "applies in many cases in which  the body whose acts are criticised  would  not ordinarily be called  a  ’Court’  nor would its acts be ordinarily termed judicial acts.  The true view  of  the  limitation would seem to  be  that  the  term ’judicial  act’ is used in contrast with purely  ministerial acts.  To  these latter the process of certiorari  does  not apply, as for instance to the issue of a warrant to  enforce a  rate, even though the rate is one which could  itself  be questioned  by certiorari. In short there must be the  exer- cise  of  some right or duty to decide in order  to  provide scope for a writ of certiorari at common law."

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  Per  May C.J. in Reg. v. Dublin Corporation [1878] LR.  9 Ir. 371 at. p. 376.(2) [1906] 2 K.B. 501 at p.535. 667     There can be no doubt that originally the writ of certi- orari  was  issued only to inferior Courts  using  the  word "Court" in its ordinary sense.   As bodies of various  types and denominations exercising  semijudicial functions came to be  introduced, the writ was extended to these bodies  also. There is a long line of decided cases showing that the  writ of certiorari has been issued to rating authorities, licens- ing Justices, Electricity Commissioners, the Board of Educa- tion,  the  General Medical Council, the  Inns   of   Court, Assessment  Committees,  the Commissioner  of  Taxation  and various other authorities who could be regarded as  perform- ing  some sort of judicial or semi-judicial function  though they  have no authority to try cases, or pass  judgments  in the proper sense of the word (1). It would be interesting to note  that  in  King v. Postmaster General (2),  a  writ  of certiorari  was  issued to quash a  disablement  certificate granted  by the Chief Medical Officer of the Post Office  on the ground that he was not the certifying surgeon under  the Workmen’s  Compensation  Act, 1925, and the  granting  of  a certificate  was held to be a judicial act.  In Rex v.  Boy- cott  (3), one Russel Keasely moved on behalf of his  infant son Stanley for an order of certiorari to remove and quash a medical  certificate   granted  by  the  respondent  to  the effect that Stanley was incapable by reason of mental defect of receiving  benefit  from instruction in a special  school under  section 56 of the Education Act, and two  other  con- nected  documents. The Court was of opinion that  as  doubts did  arise  as to whether the boy was ineducable, it  was  a proper case to be determined by the Board of Education under section  31.   It was held in these circumstances  that  the three  documents which were parts and parcel of one and  the same  transaction constituted the determination of a  quasi- judicial authority, and "exhibited all the mischief which  a writ of certiorari was intended and well fitted to correct." The  result was that all the. three documents were  directed to be brought up and (1) Vide Halsbury’sLaws of England (2nd Edition) Vol. 26, p. 284. (2) [1928] 1 K, B, 291,               (3) [1939] 2 K.B. 651. 668 quashed.   Even  a report made by a Chief Gas  Examiner  has been removed and quashed by a writ of certiorari C).     In the words of Banks L.J. the course of development  of law  on the subject demonstrates what has been the boast  of English Common Law that it will, whenever possible and where necessary, apply  existing principles to new set of  circum- stances  (2); and it was in very general terms that  opinion was  expressed in Rex v. Inhabitants of  Glamorganshire  (3) that  the Court would examine the proceedings of all  juris- dictions erected by Acts of Parliament and if under pretence of  such an Act they proceeded to encroach  jurisdiction  to themselves  greater  than  the Act warrants, the Court would send a certiorari to them to have their proceedings returned to  the Court to the end that the Court might see that  they keep  themselves  within  their jurisdiction,  and  if  they exceed it, to restrain them.     The  whole  law on the subject relating  to  issuing  of writs of certiorari was thus summed up by Atkin L.J. in  Rex v. Electricity Commissioners (4):     "Whenever any body or persons having legal authority  to determine  questions affecting the rights of  subjects,  and having  the  duty to act judicially act in excess  of  their

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legal  authority.they are subject to the controlling  juris- diction  of  the  King’s  Bench Division exercised in  these writs."     This  statement of law has been affirmed and  reiterated in   various cases since then (5) and its  correctness   has never   been  questioned.  But  unexceptionable  though  the statement is, it does not by itself afford any assistance in solving  the  real difficulty that arises in cases  of  this description.   It  postulates  existence of a  duty  in  the authority to decide judicially but it does not enumerate  or give any indication of the (1)  R.v. London County Council, 11 T.LR. 337. (2) Vide  Rex v. Electricity Commissioners, [1924] 1 K B. 171, at p.  192. (3) 1 Ld. Raym. 580.                  (4) [1924] 1 K.B. 171 at p. 205. (5)  VideR.  v. North Worcestershire  Assessment  Committee, [1929] 2 K.B. 397  at  p.  405-6;  R.v.  London  County  Council,   [1931] K.B.215. 669 circumstances  under  which such duty shall be  held  to  be imposed.  It has been pointed out very rightly by my learned brother  Das  J. in a recent Calcutta case (1) that  of  the four elements involved in the proposition of law  enunciated by Lord Atkin, three may be present in an administrative  or executive act as well.     A valid executive act undoubtedly presupposes the exist- ence of a legal authority in the officer or department to do the act.  Such executive acts may and in fact do affect  the rights of subjects.  Cases are also not infrequent where  an executive authority transgresses the limits of its jurisdic- tion,  and  acts in excess of its powers.  Yet,  it  is  not disputed  that  no writ of certiorari can be issued  to  re- strain or invalidate such executive acts. As was observed by Lord Hewart C.J. in  Rex v. Legislative  Committee  of   the Church  Assembly (2), "in order that a body may satisfy  the required  test, it is not enough that it should  have  legal authority  to  determine questions affecting the  rights  of subjects,  there must be superadded to  that  characteristic the further characteristic that the body has the duty to act judicially."  The material points for  consideration  there- fore   are  what  is the true criterion of a  judicial  act, and  how  it is to be ascertained whether  an  authority  is bound to act judicially in a particular matter or not.     It  is said that one of the best definitions of a  judi- cial  act, as distinguished from an administrative  act,  is that  given by May C.J. in the Irish case of Reg. v.  Dublin Corporation  (8).   The  question raised in  that  case  was whether  a borough rate levied by a Corporation was  illegal or not.  It was found that the borough fund of the  Corpora- tion  was  otherwise sufficient for all legitimate  purposes but  it was rendered  insufficient  by  reason   of  certain illegal  payments  made  out  of  it.   To   make    up  the deficiency,  the  Corporation  levied a  borough  rate,  the legality  of which was  challenged  and writ  of  certiorari was prayed for to quash all the orders and (1) In re Banwarilal, 48 G.W.N. 766. (2) [1928] 1 K.B. 411 at 415. (3) [1878] L.R.2 Ir.371. 670 resolutions of the Corporation in connection with the  impo- sition of the rate. The writ was granted and May C.J.  while discussing  in  his judgment the meaning of  the  expression ’judicial act’ observed as follows:     "In this connection the term ’judicial’ does not  neces-

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sarily  mean acts of a Judge or legal tribunal  sitting  for the determination of matters of law, but for the purpose  of this  question,  a judicial act seems to be an act  done  by competent authority upon consideration of facts and  circum- stances  and imposing liability or affecting the  rights  of others.  And if there be a body empowered by law to  enquire into  facts, make estimates to impose a rate on a  district, it  would seem to me that the acts of such a body  involving such consequence would be judicial acts."     This definition was approved by Palles C.B. in Re: Local Government Board, Expand Kensington Commissioners(1) and was quoted  in  extenso  by  Lord  Atkinson   in  Frome   United Breweries  Company v. Bath Justices(s).     In  the  passage quoted  above,  the learned Chief Justice  really  describes what  may  be  called the judicial  process.   There  cannot indeed  be  a judicial act which does not create  rights  or impose obligations; but an act, as has been already  pointed out  is  not  necessarily judicial because  it  affects  the rights  of  subjects. Every judicial  act  presupposes   the application   of judicial process.  There is a  well  marked distinction  between forming a personal or  private  opinion about  a  matter,  and determining it  judicially.   In  the performance of an executive act, the authority has certainly to  apply  his  mind to the materials before  him;  but  the opinion he forms is a purely subjective matter which depends entirely  upon his state of mind. It is of course  necessary that  he  must act in good faith, and if it  is  established that he was not influenced by any extraneous  consideration, there is nothing further to be said about it.  In a judicial proceeding,  on  the other hand, the process  or  method  of application is different. "The judicial process involves the application of a body of 16 L.R. Ir. 150,                  (2) [1926] A.C. 586, 671 rules or principles by the technique of a particular psycho- logical method" (1).  It involves a proposal and an  opposi- tion, and arriving at a decision upon the same on considera- tion  of  facts and circumstances according to the rules  of reason and justice(2).  It is not necessary that the  strict rules  of  evidence  should be  followed:the  procedure  for investigation of facts or for reception of evidence may vary according  to the requirements of a particular case.   There need not be any hard and fast rule on such matters, but  the decision  which  the authority arrives at, must not  be  his ’subjective’, ’personal’ or ’private’ opinion.  It must be something which conforms to an objective standard or  crite- rion  laid down or recognised by law, and the  soundness  or otherwise  of  the determination must be  capable  of  being tested by the same external standard.     This is the essence of a judicialfunctionwhich differen- tiates  it from an administrative function; and  whether  an authority  is required to exercise one kind of  function  or the  other depends entirely upon the provisions of the  par- ticular  enactment.   Where the statute itself is  clear  on this point, no difficulty is likely to arise, but where  the language  of the enactment does not indicate with  precision what  kind of function is to be exercised by  an  authority, considerable  difficulties  are  hound  to  be  experienced. There are numerous decided cases, which deal with  questions of  this character, and quite a number of them were cited to us by the learned counsel on both sides.  As they relate  to the powers and duties of various types of authorities  under various statutes and war regulations, dealing with different subject-matters  and  not uniformly worded, they are  of  no direct assistance to us in the present case.  1 think howev-

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er  that we can cull a few general principles from  some  of the  pronouncements of the English Courts, which  may  throw light  on  the interpretation of the  Ordinance  before  us. Generally  speaking, where the language of a  statute  indi- cates  with sufficient clearness that the personal (1) Robson’s Justice and Administrative Law, p. 33. (2) Vide R. v, London County Council [1931] 2 K,B. 215 at p. 233. 672 satisfaction of the authority on certain matters about which he  has  to form an opinion founds his  jurisdiction  to  do certain acts or make certain orders, the function should  be regarded  as  an executive function.  The  decision  of  the House  of Lords in Liversidge v. Anderson C) is the  leading illustration  of  this type of cases. Even  Lord  Atkin  ob- served,  in course of his dissenting judgment in this  case, that  when  the discretion is left to the  Minister  or  any other authority without qualification, by use of expressions like  the following: "A Secretary of State... if it  appears to  him necessary may order; if it appears to the  Secretary of  State that any person is concerned...; if the  Secretary of  State is satisfied that it is necessary  or  expedient," the  act cannot  but  be  held  to  be  an  executive   act. Lord  Atkin was however inclined to hold that the words  "if the  Secretary  of State has reasonable cause  to  believe," should be construed as meaning "if there is in fact reasona- ble  cause  for believing," and according to  his  Lordship’ ’reasonable  cause"  for an action or belief is  as  much  a positive  fact  for determination by a third  party  as  any other  objective condition.  This view was not  accepted  by the  majority  of the House and it was held that  the  words meant no more than that the Secretary of’ State had honestly to  suppose  that  he had reasonable cause  to  believe  the required thing.  Provided there was good faith the maker  of the  order was the only possible Judge of the conditions  of his own jurisdiction(2).     After  the law was settled in this way by the  House  of Lords, a large number of cases came up before the Courts  in England  which  involved  consideration  of  the  provisions contained  in various other orders and regulations  relating to  taking control of business or requisition  of  property. The  language  of these orders was very similar to  that  of Regulation  18 (B) under which the detention order was  made in  Liversidge’s case.  In Point of Ayr Collieries  Ltd.  v. Lloyd George (3)the (1) [1942] A.C.-206. (2)  Vide  observation of Lord  Radcliffe in Nakudda All  v, M.F. De S Jayaratna 54 G.W.N. 883, 888.              (3) [1943] 2 A.E. R. 546. 673 control  of  the appellant’s undertaking was  taken  by  the Ministry  of Fuel and Power by an order made under  the  De- fence  (General) Regulations, 1939, reg. 55 (4). The   rele- vant provision of the regulation stood as follows:     "If  it appears to the competent authority that  in  the interest  of the public safety, the defence of the realm  or the  efficient prosecution of the war or for maintaining  of supplies and services essential to the life of the  communi- ty, it is necessary to take control on behalf of His Majesty of the whole or any part of an existing undertaking  ......the competent authority may by order authorise ......  "     The  appellant’s contention was that there were no  ade- quate  grounds  upon which the Minister could  find,  as  he stated, he had found, that it was necessary to take  control

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in  the interests of the realm or the efficient  prosecution of  war.  It was held that there was no jurisdiction in  the Court  to interfere with what was an executive order  passed bona fide.     In Carltona Ltd. v. Commissioners of Works and Others(1) which was decided near about the same time, the  appellant’s factory  was  requisitioned  by the  Commissioner  of  Works under  the provisions of the Defence (General)  Regulations, 1939,  Reg.  51 (1). The requisition  order  was  challenged inter  alia on the ground that the requisitioning  authority never brought their minds to bear upon the question and had. they done so, they could not possibly come to the conclusion to which in fact they came.  In this case the regulation was almost  in  the same language as that in the  earlier  case. The words were "If it appears to the competent authority  to be necessary or expedient so tO do  ..........  "     The Court held that the Parliament had committed to  the executive  the discretion of deciding when an order for  the requisition of the premises should be made under the regula- tion,  and  with that discretion if bona fide  exercised  no Court could interfere. (1) [1943] 2 A.E.R. 560. 674 Even  when the language of the statute is such that it  con- fers  an  unlimited discretion on the executive,  there  are cases  where  a  duty on the part of the  authority  to  act judicially  has  been sought to be spelt out  of  the  other provisions  in the statute, particularly those which  relate to  the  holding of public enquiries  and  consideration  of objections by the authorities concerned.   Thus  in Pheonix Association Company v. Minister  of  Town and Country Planning(1) an application was made to quash  an order  made  under  section 1 (1) of the  Town  and  Country Planning Act, 1944, which empowered the Minister of Town and Country Planning to  make an  order  declaring land  in  any area  to  be  subject  to  compulsory  purchase, if  he  was satisfied that it was requisite for the purpose of   dealing satisfactorily  with  extensive  wardamage  in  the  area of a  local Town  Planning authority that such lands should  be laid out afresh and redeveloped as a whole.  It was held  by Hem Collins J. that the matter was not so peculiarly  within the administrative capacity of the Minister that it could be regarded as one of pure discretion.  Reliance was placed  on the  fact  that  the statute was not a  piece  of  temporary legislation  like  Regulation  18 (B),  and  the  provisions relating to holding of public enquiry, and hearing of objec- tions,  indicated  according to the learned Judge  that  the function was of a quasijudicial character.  There  was  no appeal against this judgment,  but  quite  a contrary  view  was  taken by                 the  Court  of Appeal in another case which involved             considera- tion   of the same provisions of the same Act.          This was   the   case  of   Robinson  and  others   v.   Minister of Town and Country Planning (2) and it was held there  that the  order  under section 1 (1) of  the  Town            and Country Planning Act is made by the Minister as an executive authority and he is at liberty to base his opinion on  what- ever  he  thinks  proper.   Stress was  laid  on  the  words "requisite" and "satisfactory"            used  in the  (1)[1947] 1 A.E.R.454.            (2) [1947] 1 A.E.R.851 675 section  and these words indicated according to the  learned Judges  that  the question was one of  opinion  and  policy, matters  which were  peculiarly for the Minister himself  to

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decide, and as to which, assuming always that he acted  bona fide, he was the sole Judge. It was further observed that no objective test was here indicated and that different consid- erations might apply where a Minister could be shown to have overstepped the limits of his power, e.g., where the  condi- tions  in which they may be exercised were laid down in  the statute  and he purported to act in a case where the  condi- tions did not exist.     In  Errington and others v. Minister of Health  (1)  the question  arose  as to whether an order of the  Minister  of Health confirming a clearance order made by a local authori- ty  under section 1 of the Housing Act of 1930 was an execu- tive  or judicial order.   It was held that if there was  no objection raised to clearance order by persons interested in the property and it was confirmed by the Minister, there was no exercise by the latter of any judicial or  quasi-judicial function.   But the position becomes different if objections are  raised. Then the Minister would have to hold  a  public local  enquiry as provided for by the Act and  consider  the report of the person who held the enquiry.  In such  circum- stances the decision to confirm the clearance order  amounts to an exercise of quasi-judicial function.     This was a case under the Housing Act of 1930. In Frank- lin  v. Minister of Town and Country Planning  (2)  however, which  was  a case under the New Towns Act, 1946,  and  con- tained very similar provisions, it was held by the House  of Lords that in considering the report of the person who  held a public enquiry after objections have been made to an order under  section 1 (1) of the New Towns Act, the Minister  has no  judicial or quasi-judicial duty imposed on him, so  that considerations of bias in the execution of such duties  were altogether irrelevant.     It  would be seen from the cases referred to above  that the distinction between judicial and executive (1) [1935] 1 K.B. 249.          (2) [1948] A.C. 87, 676 function often turns out to be a very fine one, and  differ- ence  of  opinion amongst Judges is not  uncommon  on  these matters  even when they have got to construe  provisions  of Acts  which  employ  language very similar  to  each  other. Leaving  aside the cases, where the existence of a  duty  to act judicially is sought to be inferred from the  provisions of  a statute relating to holding of enquiry or  hearing  of objections, the general rule that all the eases lay down  is that  if the foundation of the exercise of the powers by  an authority is his personal satisfaction or subjective opinion about  certain  facts,  the function is to  be  regarded  as executive and not judicial. The facts may undoubtedly be and often are objective facts about which the authority has  got to form his opinion. When a statute says that a Minister can requisition  property  or order compulsory  purchase  if  he deems it expedient to do so in the interest of public safety or the defence of the realm, the condition precedent to  the exercise  of his powers is not the actual existence  of  na- tional  interest,  but  his own opinion or  belief  that  it exists.  To quote the words of Lord Radcliffe "If the  ques- tion  whether  the  condition has been satisfied  is  to  be conclusively  decided  by the man who wields the  power  the value of the intended restraint is in fact nothing (1)".  On the  other hand, if the statute imposes an objective  condi- tion  precedent  of  fact to the exercise of  powers  by  an authority,  and not merely his subjective opinion about  it, the function would be prima facie judicial. The  distinction is  beautifully  illustrated by Lord Atkin  in  his  classic judgment in Liversidge’s case (2).  If it is a condition  to

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the  exercise of powers by A that X has a right of way or  Y has a broken ankle, the authority is charged with  determin- ing  these facts and it must ascertain  judicially   whether the conditions are fulfilled or not.  If, on the other hand, the condition is that the authority thinks or is of  opinion that  X  has  a right of way or Y has a  broken  ankle,  the condition is a purely subjective condition   (1)   Vide  Nakkuda Ali v. M.F. De S. Jayratne  54  G.W.N. 883, 888. (2) [1942] A.C. 206,207 677 and  the act cannot be a judicial act, as the  existence  of the  condition is incapable of being determined by  a  third party by application of any rule of law or procedure.     One  other question arises in this connection  and  that relates  to the second and alternative contention raised  by the learned Attorney-General. When the legislature delegates powers to an authority, and lays down that the powers  could be exercised only if a certain state of facts exists,  obvi- ously  the  authority  cannot act if the  condition  is  not fulfil/ed.   If it wrongly holds or assumes that the  condi- tion exists although it actually does not exist, its assump- tion  of jurisdiction would be unsupportable, and  could  be removed  by a writ of certiorari.  The  legislature  however may entrust the authority with a jurisdiction which includes the jurisdiction to determine whether the preliminary  state of facts exists. In such cases even if the authority makes a wrong  decision either of facts or law, it can be  corrected by an appellate tribunal if there is any, but not by a  writ of  certiorari, as every authority if it acts within  juris- diction  is competent to decide both rightly or wrongly  (1) Keeping in view the principles mentioned above, I would  now turn  to  the  provisions of the  Bombay  Land   Requisition Ordinance,  1947,  and  try to ascertain from the nature and scope  of  the provisions, whether the  act  of  requisition which section 3 of the Ordinance contemplates is a  judicial or a purely administrative order.     The  title of the Ordinance shows that it was passed  to provide  for  the requisition of land,  for  continuance  of requisition  already made and for other purposes. The  first preamble  sets  out  the fact that  the  GovernorGeneral  in exercise of the powers conferred on him under section 104 of the Government of India Act, 1935, has empowered all provin- cial legislatures to enact laws with respect to  requisition of  land.  The second preamble really gives the  reason  for passing of  (1)  Per Esher L.J. in Queen v. Commissioners for the  Spe- cial Purposes of  Income Tax, ’21 Q.B.D. 313 at p. 319. 678 the Ordinance; it recites that the Bombay Legislature is not in  session  and the Governor of Bombay  is  satisfied  that circumstances  exist  which render it necessary for  him  to take immediate action to enable the Provincial Government to make provisions for requisitioning of land and for  continu- ance of requisition of lands already subject to requisition. Section 3 of the Ordinance is the most material section  for our present purpose and it stands as follows :--     "If  in the opinion of the Provincial Government  it  is necessary  or expedient to do so, the Provincial  Government may by order in writing requisition any land for any  public purpose :"     There is a proviso added to the section which is  worded thus:     "Provided  that  no and used for the purpose  of  public religious  worship or for any purpose which  the  Provincial Government  may  specify  by notification  in  the  Official

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Gazette shall be requisitioned under this section."     The language of the section taken along with the proviso indicates  in my opinion, that whereas the act  of  requisi- tioning  land  is left to the executive  discretion  of  the Provincial  Government and the latter can  requisition  land whenever  it  considers  necessary or expedient  to  do  so, certain conditions have been laid down which are  conditions precedent  to. the exercise of the powers. The first  condi- tion  is specified in the section itself and  it  postulates the   existence  of  a  public  purpose  as   an   essential prerequisite  to  the  taking of  steps  by  the  Provincial Government  in  the matter of requisitioning  any  property. Even  where  this condition is satisfied, there  is  another condition  imposed by the proviso which is in the nature  of an  exception  engrafted upon the entire section  and  which prevents  the  Provincial  Government  from  exercising  its powers at all if the land sought to be requisitioned is used for public religious worship or for any other purpose  which the  Provincial  Government has specified  in  the  Official Gazette. 679     In  my opinion the existence of a public purpose  as  an objective  fact, and not the subjective opinion of the  Pro- vincial Government that such fact exists, has been made  the essential  preliminary which founds the jurisdiction of  the Provincial  Government to proceed with any act  of  requisi- tion.     This would be apparent from the collocation of words  as they  occur in section 3 and also from other  provisions  of the Ordinance which indicate the scheme which the framers of the Ordinance had in view.     Section  3  does not say that if in the opinion  of  the Provincial Government it is necessary or expedient to requi- sition land for any public purpose, it may do so by an order in  writing.   In that case it might be argued that  it  was left  as  a matter of subjective opinion to  the  Provincial Government  to  decide whether there was or not  any  public purpose justifying the requisition; and provided the author- ity  acted in a bona fide manner, the Courts would  have  no say in the matter.  The words "public purpose," it would  be seen, have been placed at the end of the sentence, and  this indicates that it is a thing collateral to, and not included in,  the act which has been described before, and which  has been  left  to the discretion of the executive.   It  is  an independent fact, the existence of which enables the  execu- tive  to move in the matter of requisitioning property,  but it  is itself not dependent on the personal opinion  of  the executive.  I agree entirely with Chagla C.J. that the words "to do so" refer to the act of requisition, that is to  say, to the nature of the act and not to the purpose for which it is  done.  There is no indication here, as there is in  var- ious statutes and regulations which I have referred to above that not merely the necessity or expediency of  requisition- ing  property, but the existence of a public  purpose  which gives occasion for exercising the powers of requisition,  is also a matter of personal opinion of the executive.     Reference  was made in course of arguments to  the  lan- guage  of section 4 of the Indian Land Acquisition Act,  and similar provisions in other Land Acquisition 680 enactments, where the expression ’public purpose’ occurs.    It will be seen at once that the language of these provi- sions is materially different from that of section 3 of  the Ordinance. In Wijeyesekera v. Festing(1) the Privy Council had to  deal

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with a case under the Ceylon Acquisition of Land  Ordinance. Section 4 of the Ordinance provides as follows:   "Whenever it shall appear to the Governor that land in any locality  is likely to be needed for any public purpose,  it shall  be  lawful for the Governor to  direct  the  Surveyor General or other officer  ......    to examine such land and report whether the same is fitted for such purpose."    "Section 6 then says:   "The   Surveyor   General   or   other   officer    ...... shall make his report to the Governor Whether the possession of the land is needed for the purpose for which it  appeared likely  to be needed as aforesaid, and upon the  receipt  of such  report  it shall be lawful for the Governor  with  the advice  of  the Executive Council to direct  the  Government Agent to take order for the acquisition   of the land."   The question raised was whether the decision of the Gover- nor that the land is wanted for public purpose is final, and the  question  was answered in the  affirmative.   It  seems clear  that on the language of the two sections referred  to above no other answer was possible.  It is not the existence of  a public purpose which is a condition precedent  to  the exercise  of powers by the Governor under the  Ceylon  Ordi- nance.  The  Governor has been made the sole  Judge  of  the existence  of public purpose as well as of the necessity  of acquiring  land  for that purpose.  There  is  no  condition limiting or restricting his powers in any way.   The language of section 4 of the Land Acquisition Act of India is very much the same.              The section begins with these words:   (1) [1919] A.C. 646 681     "Whenever  it appears to the local Government that  land in  any  locality is needed or likely to be needed  for  any public purpose  ......  "     Moreover, under section 6 (3) of the Act, a  declaration made  by the Government that any land is needed  for  public purpose  is  conclusive evidence of the  existence  of  such purpose.     What  exactly is the extent of powers conferred  by  the Legislature  upon a body or tribunal is to be gathered  from the  language  used by the Legislature. Mere  similarity  or even identity of objects cannot justify us in coming to  the conclusion  that  the Legislature must have meant  the  same thing  in one piece of legislation as it meant  in  ’another when  the language is not identical.  In cases of  this  de- scription  utmost stress should be laid on the actual  words used,  for  there  is no presumption  that  the  Legislature intended to confer one kind of power on the authority rather than  another in cases of particular type.  If there is  any presumption  at  all it is in favour of the liberty  of  the subject, and any law which encroaches upon such liberty must be construed strictly and should not be carried beyond  what the actual words used mean in their plain grammatical sense. It  may be pertinent to point out in this connection that  a similar provision in section 3 (1) of the West Bengal  Prem- ises  Requisition and Control Act, has been expressed  in  a different  language and the actual existence of public  pur- pose has not been made a condition precedent to the exercise of  powers  by the Provincial Government.   The  section  is worded as follows:     "Whenever  it appears to the Provincial Government  that any premises in any locality are needed or are likely to  be needed  for any public purpose, it may by order  in  writing requisition such premises."     There has been a recent decision(1) of the Calcutta High

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Court  on  the above provision of the Bengal  Act,  but  the particular  point which has arisen for our consideration  in this case, was not and could not be raised there. (1) A.C. Mahomed v. Sailendranath 54 C.W.N.. 642. 682     A conspectus of the whole of the Bombay Ordinance leaves a  clear  impression that it was not the  intention  of  the framers of the Ordinance to give an unlimited and unfettered discretion  to  the Executive Government in  the  matter  of requisitioning  property.  The powers are  to  be  exercised within  defined limits. Section 3 as stated above imposes  a twofold restriction, one by postulating the objective exist- ence of public purpose as a pre-requisite to the exercise of discretionary  powers,  the other by  excluding  the  powers altogether  when  the land is used for  a  public  religious purpose.  Thus the proviso which excepts the cases specified therein  from the sphere of operation of the general  provi- sion  of the entire section has also set    up an  objective condition, the existence of which would exclude the exercise of   powers by the Provincial Government.  Section  4  again deals  with  requisition of vacant premises and  instead  of leaving it to the executive to determine whether a  premises is vacant or not, sub-clause (i) gives an elaborate descrip- tion  of  the  circumstances under which  vacancy  would  be deemed to arise in law.  The power of requisitioning  vacant premises  can  be made only if the conditions laid  down  in section  4  are fulfilled.  Section 8 deals with  powers  of enquiry  for purposes of payment of compensation as is  pro- vided for in section 6 and is not material for our  purpose. Section  10  makes a general provision  and  the  Provincial Government under this section may, with a view to carry  out any of the purposes of the Ordinance, by order, require  any person to furnish any information in his possession relating to  the land requisitioned or to be requisitioned.  This  is certainly an enabling provision and I am unable to say  that this  provision by itself indicates that the function  exer- cisable by the Provincial Government is a judicial function. The  duty to act judicially is, in my opinion,  implicit  in section 3 itself.     It must not be overlooked that the determination of  the existence  of ’ public purpose’ involves decision  on  ques- tions of both facts and law. As was observed by 683 Lord  Loreburn in Board of Education v.  Rice(1),  "compara- tively  recent  statutes  have extended, if  they  have  not originated,  the  practice of imposing upon  departments  or officers of State the duty of deciding or determining  ques- tions of various kinds. In the present instance, as in  many others,  what comes for determination is sometimes a  matter to  be settled by discretion involving no law.  It  will,  I suppose, be usually of an administrative kind;but  sometimes it will involve matter of law as well as matter of fact,  or even  depend upon matter of law alone.  In such  cases,  the Board  of Education will have to ascertain the law and  also to ascertain the fact."  This was held by his Lordship to be a clear index of a duty to act judicially.     It was suggested, in course of arguments that as  admit- tedly  the actual act of requisition is  discretionary  with the Provincial Government, no writ of certiorari can  possi- bly  be issued.  There is not much substance in  this  argu- ment,  for  the very jurisdiction or authority  to  exercise discretion  is dependent on a condition precedent  which  if unfulfilled  would  make  the exercise  of  discretion  void altogether.   It is a commonplace feature of this  class  of legislation that an authority is often required to  exercise

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both  ministerial and quasijudicial functions.   Whether  he acts administratively throughout or is put at one stage in a quasi-judicial  position has to be gathered from the  provi- sions  of  the Act.  The case of Errington  v.  Minister  of Health(2)  is a leading authority which holds that the  same proceeding may be administrative at one stage and quasijudi- cial at another.     The position in my opinion may be summed up as follows:     The  Provincial  Government has to satisfy  itself  that there is a public purpose before it proceeds to  requisition any  property.  As this is an objective condition which  has not  been  made  dependent on the personal  opinion  of  the Executive it has got to be determined judicially and whether a public purpose exists or not is itself a mixed question of facts and law which could (1)  [1911] A.C. 179 at p, 182.           (2) [1935] 1  K.B. 249. 684 be  determined by, application  of well established  princi- ples  of  law  to the circumstances of  a  particular  case. There  is undoubtedly a lis or point in controversy-or  what is  called  a proposal and an opposition. On the  one  hand, there  is the interest of the public, and on the other,  the interest of the individual whose property is being  requisi- tioned.  No  formal  array of parties is  necessary.  It  is enough  that there is a point in issue which has got  to  be decided  between  parties having  conflicting  interests  in respect to the same. The fact that the Provincial Government represents  the interests of the public also is to  my  mind immaterial.   If  there is a duty to  decide  judicially  it would be a judicial act, and it is not necessary that  there must be two opposing parties other than the deciding author- ity appearing in a regular or formal   My  conclusion, therefore, is that on the first point  the decision  of  the High Court is right, and  the  contentions raised by the learned Attorney-General must fail.   The  question now arises whether the Ordinance has  con- ferred  upon the Provincial Government the  jurisdiction  or authority  to ’decide finally as a part of  the  requisition proceeding itself whether any public purpose exists or  not. If  it has, the error, if any, committed by  the  Provincial Government, may be an error of fact or law, but would not be one of jurisdiction, and whatever other remedy might be open to the aggrieved party, a writ of certiorari would not  lie. As  has been said already, it is clear from the language  of section  3  of  the Ordinance that the  act  of  requisition itself, provided the condition precedent is fulfilled, is  a pure  executive  act,  in regard to  which  an  untrammelled discretion  has been left to the Provincial Government..  If the  state  of  fact exists which  entitles  the  Provincial Government to act, the function that the Provincial  Govern- ment  exercises is a purely administrative  function,  which does not involve performance of any judicial duty.  In  such circumstance  the  existence of public purpose is  either  a matter of personal opinion of the Provincial Government 685 in Which case no question of exercising a judicial  function at all arises, or it is wholly independent of and collateral to  the  executive act and is an objective  condition  which must be fulfilled before  the Provincial Government can take any  steps  in the matter. As I have stated  already,  on  a proper  interpretation  of section a of the  Ordinance,  the latter is the proper view to take.  This being the position, whether  or  not a public purpose exists  is  a  preliminary question which is collateral to the merits of the  executive

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act which is to be performed by the Government under section 3 of the Ordinance.        Public purpose must exist as a fact, and the  Provin- cial   Government  must satisfy itself as to  its  existence before it can take any steps in requisitioning property; but it is not for the Provincial Government to decide the matter finally  or conclusively, and its decision on this  prelimi- nary  point  would be open to enquiry  by  superior  courts. These  principles  are laid down in Bunbury v.  Fuller  (1), Pease  v.  Chaytor (2) and Colonial Bank of  Australasia  v. Willan  (3).   By way of illustration  of  these  principles reference may be made to two well-known English cases.    In  Rex v. Woodhouse (4) there was an application  to bring  up  an  order made by Licensing  Justices  under  the Licensing  Act  referring an application for  renewal  of  a licence to quarter sessions.  One of the points    raised in the  case  was  whether or not the Justices  were  right  in deciding  that the  applicants  were   qualified  to   apply for   licence  under  the  provisions of  the   Beer   House Act,  1840,  which   required that  the applicant should  be the real resident holder and occupier of the dwelling  house in which he should apply to be licensed.  It was held by the majority of Judges in the Court of Appeal that the fact that the  applicants  were not the real resident holders  of  the Beer  houses excluded them from the class to whom  licences, whether  absolute  or conditional, could be granted  and  no erroneous decision on this (1) 9 Ex. Ch. 111.             (8) [1874] 5 P.C. 417  at p.422.     (2) 3 B. & S. 620,             (4) [1906] 2 K.B. 505 686 question  of fact by the Magistrates could give them  juris- diction.      Reference was made by Fletcher Moulton L.J. to  certain passages in Bunbury v. Fuller (1) and Peaso. v. Chaytor  (2) and it was held that if the licensing Magistrates did decide these points of fact, it is the duty of the Court to  review their  decisions, and if it is erroneous, to quash  the  li- cences and references.  The other case is that of Rex v. Bedford (3), and it  arose upon  a  rule for a certiorari to bring up an order  of  the Justices  authorising the entry upon certain  enclosed  land for  the purpose of taking materials for the repair of  cer- tain  roads  under sections 53 and 54 of the  Highways  Act, 1835.   Under  sections 53 and 54 of the Highways  Act,  the Justices may license the Surveyor of Highways to take  mate- rials  for repair of the Highways "at such time or times  as to  such Justices may seem proper from the enclosed land  of any  person   ....not  being a park."  On  a  licence  being granted  by the Justices to the Newton Abbot Rural  District Council, authorising them by their Surveyor, to take materi- als  for  the repairs of the Highway from a place  known  as Grange Quarry in the said Parish, a rule was obtained for  a writ  of  certiorari to bring up the order  to  be  quashed, inter  alia on the ground that it was made in respect  of  a land  which  was a park.  It was held that the land  was  in fact a park, and the Justices cannot give themselves  juris- diction  by  finding that it was not a park.   The  question whether  the  place is a park or not is a  matter  which  is preliminary  to exercise of the Justices’ jurisdiction,  and one  which  is not for the Justices  to  determine  finally. "The  enquiry is not in the course of exercise of  jurisdic- tion  but as a preliminary to it.  The case therefore  falls within  the rule laid down in Bunbury v. Fuller (4) and  the Justices’ decision in the matter is subject to review. ’’

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    It must be admitted that in both these cases there  was no dispute that the Justices had to exercise    (1) 9 Ex. Ch. 111.               (2) 3 B. & S.620.    (3) [1908] 1 K .B, 365,          (4) 9 Ex. Ch. 111.. 687 quasi-judicial powers, and the only question was whether the facts  upon which the exercise of jurisdiction was  made  to depend  were preliminary matters collateral to  the  enquiry or  were matters to be adjudicated upon as part of  the  en- quiry itself.  In the case before us the act of requisition, as said already, is an executive and not a judicial act, and to this extent therefore there is no similarity between  the present case  and  those referred to above.  But the princi- ples  underlying these authorities can certainly be  invoked for  our present purpose.  The act of requisition  being  an executive  act,  the  determination of the  existence  of  a public purpose upon which the exercise of powers is  depend- ent  is  either  a part of the executive act  itself  or  is something  collateral to it.  I have attempted to show  that it is a thing collateral and preliminary to the exercise  of executive authority and not a part of it. That being so, the determination  of  this collateral matter by  the  executive authority  which  is,  in my opinion,  a  judicial  function cannot  be  regarded as  final and if the  determination  is erroneous,  it  can be corrected and removed by  a  writ  of certiorari.   It  may be stated here that before the learned  Judges  of the appellate Bench in the High Court no attempt was made on behalf  of the Government to establish that the premises  in question  were  requisitioned  for any  public  purpose.   A public  purpose involves some benefit to the community as  a whole,  as opposed to the personal gain or interest of  par- ticular individuals. Housing of refugees may certainly be  a public purpose, and under certain circumstances even  secur- ing a house for an individual may be in the interests of the community,  but it cannot be to the general interest of  the community  to requisition the property of  one  refugee  for the benefit of another refugee.     The only other question that remains to be considered is whether  a  writ of certiorari lies against  the  Provincial Government?     On  this  point the contentions raised  by  the  learned Attorney-General fall under two heads.  The  first 688 branch  of the argument is that the  expression  "Provincial Government"  occurring in section a of the  Ordinance  means the  same thing as the Governor of the Province. This  being the  position  there  is complete immunity  enjoyed  by  the Provincial  Government in respect of all judicial  processes under  section  306  (1) of the Constitution  Act,  and  the powers  of the High Court itself are restricted and  limited in this respect by certain enactments.     The other branch of the contention is that under section 176  of  the Constitution Act, no action of  this  character could be brought against the Province of Bombay, and in  any view  the  expressions "sue or be sued" as used  in  section 176, do not include an application for a writ of certiorari.     As  regards the first branch of the argument it may  may be pointed out at the outset that no definition of the  term "Provincial  Government" has been given in the  Constitution Act,  1935.  Part  1II of the Act  deals    with   Governors’ Provinces.   Section 49 (1) which occurs in this  Part  pro- vides that  "the executive authority of a Province shall  be exercised  on behalf of His Majesty by the Governor,  either directly  or through officers subordinate to him."   Section

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50 lays down that" there shall be a Council of Ministers  to aid  and  advise the Governor in the exercise of  his  func- tions,  except in so far as he is by or under this  Act  re- quired  to  exercise  his functions or any of  them  in  his discretion."  Section 51 provides inter alia how the  minis- ters are to be chosen and section 52 deals with the  special responsibilities  of the Governor.  Section  59  (1)provides that  "all executive action of the Government of a  Province shall  be  expressed  to  be  taken  in  the  name  of   the Governor."The  Governor  is thus the executive head   of   a Province  and all executive acts are done in his name.  This does not mean that Government of a Province is vested solely in  the  Governor, or that the  expressions  "Governor"  and "Provincial  Government" have the same meaning and  connota- tion in the Constitution Act. 689     It  is  only a form adopted for purpose  of  convenience that  in a Governor’s Province, all acts of  the  Provincial Government  would  be done in the name of the  Governor,  no matter  wherever under the Constitution, the  responsibility might actually lie. Section 3 (43) (a)of the General Clauses Act  (as amended by the Adaptation Order Of 1947)  which  is relied  upon in this connection does not in any  way  affect this position. It says that" as respects anything done or to be  done after the establishment of the Dominion  of  India, ’Provincial  Government’ shall mean in the Governor’s  Prov- ince  the Governor." This is a mere description as  will  be apparent  from  the ’fact that under the  same  clause,  the expression" Provincial Government" used with reference to  a Chief Commissioner’s Province means the Central  Government. Section 806 (1) of the Constitution Act however is based  on an  absolutely different principle and it is  not  concerned with  the  acts of any Provincial Government  no  matter  in whose name the acts are expressed to be taken.  The  section runs as follows:     "No proceedings whatsoever shall lie in, and no  process whatsoever shall issue from, any court in India against  the Governor-General,  against  the Governor of a  Province,  or against the Secretary of State, whether in a personal capac- ity  or  otherwise,  and, except with the  sanction  of  His Majesty  in Council, no proceedings whatsoever shall lie  in any  court  in India against any person, who  has  been  the Governor-General, the Governor of a Province, or the  Secre- tary  of State in respect of anything done or omitted to  be done by any of them during his term of office in performance or purported performance of the duties thereof:     Provided that nothing in this section shall be construed as restricting the right of any person to bring against  the Federation,  a  Province,  or the Secretary  of  State  such proceedings  as are mentioned in Chapter III of Part VII  of this Act."     The language of the section is perfectly clear and indi- cates that its whole object is to grant personal 690 immunity to the Governor-General, the Secretary of State  or the Governor of a Province from all proceedings in or  proc- esses from any court in India, both during the term of their office  and  afterwards.   The protection is  given  in  the interests of the administration itself, for it would  really be  productive of disastrous consequences if  the  Governor- General  or  the Governor of a Province could be  hauled  up before  any court in India in respect of acts  committed  by them  in  their personal capacity or otherwise.   That  this protection  is  purely  personal follows  clearly  from  the latter part of the section which interdicts  any  proceeding

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against the  Governor General, the Governor of a Province or the  Secretary  of State, after they  have ceased to  be  in office,  for  any act of omission or commission  during  the term   of their office.  This part  of  the   section  would be  wholly   devoid  of any meaning, if the  Governor  of  a Province,  is  taken to be synonymous  with  the  Provincial Government.  The Governor of a Province is certainly a  part of  the  Government of the Province and formally he  is  the mouthpiece  of all executive acts done in the Province,  but section  306  (1)  does not purport to protect  any  of  the official acts.  It grants a personal exemption to the Gover- nor from any judicial processes in India, no matter  whether they arise out of official or non-official acts committed by him,  and this exemption continues even after he has  ceased to be in office, except where  His Majesty chooses to  relax the rule.  I agree with the learned Judges of the High Court in holding that even the possibility of a misconstruction of this  section has been removed by the proviso  engrafted  on it,  which lays down in clear terms that the  provisions  of the section shall not be construed as restricting in any way the  right of any person to bring against the Federation,  a Province, or the Secretary of State  such proceedings as are mentioned in Chapter III of Part VII of the Act.     The material provision in Chapter III of Part VII of the Act  is  that contained in section 176, and I will  come  to that presently; but before I do so, it would 691 be  convenient to dispose of the other point raised  by  the learned Attorney-General in connection with the first branch of  his argument.  The point raised is that apart  from  the protection  afforded by section 306 (1) of the  Constitution Act  there is a limitation on the powers of the High  Court, to grant processes against the Provincial Government and  we have  been referred in this connection to section 1  of  the East  India Company Act (21 George III, Ch. 17) and  certain provisions in the Act of 1823 under which the Supreme  Court was  established  in Bombay.  This contention again,  in  my opinion, would be of no avail, if as I have  stated   above, the   Provincial  Government is not identifiable. with   the Governor  personally.  It  may be mentioned  here  that  the Supreme Court was established  at  Fort  William in   Bengal under the Statute (13 George III, Ch. 63) commonly known  as the  Regulating Act, and the Charter establishing the  Court was  issued  by King George III on March 26,1774.  It  is  a historical  fact  that  there was conflict  of  an  unseemly character  between the Judges of the Supreme Court  and  the Executive  Government  headed  by  the  Governor-General  in Council.  In view of this conflict an Act was passed in 1781 (21 George III, Ch. 17) section 1 of which provided that the Governor General in Council in Bengal "should not be subject to the jurisdiction of the Supreme Court for or by reason of any  act  or order or any other matter of  thing  whatsoever counselled or ordered or done by them in their public capac- ity  only."   Bombay got its Supreme Court  in  1823,  under Statute, 3 George IV, Ch. 71, and clause VII laid down "that it  shall be lawful for His Majesty to establish  a  Supreme Court  at Bombay, to be invested with ’such powers  and  au- thorities  and  privileges,  limitations,  restrictions  and control  .........  as the said Supreme Court of  Judicature at  Fort  Wiliam  in Bengal by virtue of  any  law,  now  in force  .........is invested or subject to."    The  Charter  expressly provided that "the  Governor  and Council  at Bombay and the Governor-General and  Council  of Fort William shall enjoy the same 692

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exemptions  and no other from the authority of  the  Supreme Court  to  be erected at Bombay as is enjoyed  by  the  said Governor  in Council at Fort William from the Judicature  of the    Supreme   Court   of   Judicature    there    already established."   Assuming that these powers and  disabilities of the Supreme Court continued even after the  establishment of  High  Courts by reason of section 9 of the  High  Courts Act,  186  1,  and that these  limitations  were  implicitly recognised  in section 106 of the Government of  India  Act, 1915, and section 223 of the Act of 1935, it is quite  clear from the language of the provisions set out above that  they granted  only a personal exemption to the Governor and  Mem- bers of the Council.  As the Governor in his personal capac- ity  is  different  from the  Provincial  Government,  these provisions  are  of no assistance to the  appellant  in  the present case.  It would be seen that these exempting  provi- sions  were  substantially embodied in section  110  of  the Government of India Act, 1915, and were later on placed in a much  more  comprehensive  form in section 306  (1)  of  the Constitution  Act.  As the jurisdiction of the  old  Supreme Court was inherited by the Original Side of the three Presi- dency  High Courts, section 110 of the Government  of  India Act, 1915, granted  exemption to the  Governor-General,  the Governor   and  members of the  Council  from  the  Original Jurisdiction  of  High Courts both civil and  criminal,  the only exception being when there were charges of treason  and felony  against these officials. Section 306 (1) of the  Act of  1935 is more comprehensive and includes proceedings  and processes of any kind either civil or criminal, and  started either in the Original Side of a High Court, or in any other Court  in  the  mofusil.  As there were no  members  of  the Council  under  the Constitution Act of 1935,  there  is  no mention of such members in section 306 (1) of the Act.    The  first  branch of the contention  advanced  by  the learned  Attorney-General   cannot  therefore  be supported.      As regards the other  branch of the appellant’s conten- tion the decision really  hinges on the true 693 construction of section 176 of the Constitution Act. Section 176 (1) stands as follows:     "The  Federation may sue or be sued by the name  of  the Federation  of India and a Provincial Government may sue  or be sued by the name of the Province, and, without  prejudice to  the subsequent provisions of this chapter, may,  subject to any provisions which may be made by Act of the Federal or a  Provincial Legislature enacted by virtue of  powers  con- ferred  on that Legislature by this Act, sue or be  sued  in relation  to their respective affairs in the like  cases  as the  Secretary of State in Council might have sued  or  been sued if this Act had not been passed."     The first part of the sub-section relates to parties and procedure, and lays down in what form a suit is to be insti- tuted  against Government in respect to matters relating  to the  Federation  or  Provinces of India.   The  latter  part enacts that subject to any statutory provision that might be made,  suits would lie against the Provincial Government  in the name of the Province, and against the Federal Government in the name of the Federation of India, in relation to their respective affairs, where such suits would have laid against the Secretary of State in Council if the Act of 1935 had not been passed.  The present proceeding which has been  started against the Province of Bombay, would therefore be competent if  such proceeding could have been instituted  against  the Secretary  of  State in Council under the law  as  it  stood prior to the passing of the Constitution Act.

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   The  right and liability of the Secretary of  State  for India  to sue or to be sued were created for the first  time by section 65 of Act 21 and 22 Victoria, Ch. 106, which  was passed  in 1858 on the transfer of the Government  of  India from the East India Company to the Crown.  The section  runs as follows:     "The Secretary of State in Council shall and may sue and be  sued as well in India as in England by the name  of  the Secretary  of State in Council as a body corporate, and  all persons and bodies politic shall and 694 may  have and take the same suits, remedies and  proceedings legal and equitable against the Secretary of State in  Coun- cil  of  India,  as they could have done  against  the  said company."     The object of the Act was to transfer to Her Majesty the possession  and  government of the  British  territories  in India  which were then vested in the East India  Company  in trust  for the Crown; but as the Queen could not be sued  in her  own court, it was provided that the Secretary of  State in Council as a body corporate would have the same rights of suit  as the East India Company had and would be subject  to the  same liability of being sued as previously attached  to the East India Company.     This  provision  of the Act of 1858  was  reproduced  in section  32  of the Government of India Act,  1915,  in  the following terms:     "(1)  The Secretary of State in Council may sue  and  be sued  by the name of the Secretary of State in Council as  a body corporate.     (2)  Every person shall have the same  remedies  against the  Secretary  of  State in Council as he  might  have  had against  the East India Company, if the Government of  India Act, 1858, and this Act had not been passed."    The question therefore narrows down to this as to wheth- er an action of the character that has been brought  against the  Province of Bombay could have been brought against  the East India Company prior to 1858.  In my opinion the  answer to this question must be given in the affirmative.  All  the relevant authorities on this point have been very  carefully reviewed by the learned Judges of the Bombay High Court, and I  am in entire agreement with the reasons assigned by  them in  support of their conclusion.  It is true that  the  East India  Company was invested with powers and functions  of  a two-fold  character.   They had on the one  hand  powers  to carry  on  trade as merchants; on the other  hand  they  had delegated  to  them  powers to acquire,  retain  and  govern territories 695 to raise and maintain armies and to make peace and war  with native powers in India.  But the liability of the East India Company  to be sued was not restricted altogether to  claims arising  out  of undertakings which might be carried  on  by private persons; but other claims if not arising out of acts of  State could be entertained by civil courts, if the  acts were done under sanction of municipal law and in exercise of powers  conferred  by such law.  The law on this  point  was discussed very ably by the Madras High Court in Secretary of State  v.  Hari Bhanji (1).  The learned  Chief  Justice  in course of his judgment contrasted the decisions in Secretary of  State v  Kamachee Boye Saheba (2) with that in  Forester v.  Secretary of State(3). In the first of these  cases,  on the death of Raja Sivaji who enjoyed the status of a  sover- eign the East India Company seized the whole of his property as  an escheat to the Paramount Power.  A bill was filed  by

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the  widow  of  the deceased to recover  possession  of  the properties.  It was held by the Privy Council that the  suit was not maintainable.     Lord Kingsdown laid down that the real point for  deter- mination  in  such  cases was whether ’’it  was  seizure  by arbitrary power on behalf of the Crown of the dominions  and property  of a neighbouring State, an act not  affecting  to justify  itself on grounds of municipal law; or  whether  it was  in  whole or in part a possession taken  by  the  Crown under colour of legal title of the property of the late Raja of  Tanjore in trust for those who by law might be  entitled to  it on the death of the last possessor.  On the facts  of the  case  it was held that the seizure was an  exercise  of sovereign power effected at the arbitrary discretion of  the company  by the aid of military force and  consequently  the court  had no jurisdiction to try the case.    In the  other case  the  Government had recovered the lands  held  by  one Begum  Sumaroo as a Jagirdar after her death and the  plain- tiff filed a suit to recover the property, on the basis of a deed   of  will  executed  by  (1)  [1882] 5 Mad. 273.           (2) [1859] 7 M.I.A.  461. [1871-72] I.A. Supplement Vol., p. 10. 696 her. It was held by the Privy Council that as Begum  Sumaroo was  not a Sovereign Princess and the act of resumption  was done  under colour of legal title of lands  previously  held from  Government by a subject,  it was not an act of  State, and the suit was consequently triable by a civil court.   As was  observed  by Lord Atkin in Eshugbayi Eleko  v.  Officer Administering   the  Government of Nigeria ,   "This  phrase (act of State) is capable of being misunderstood. As applied to  an act of the sovereign power directed  against  another sovereign  power or the subjects of another sovereign  power not  owing temporary allegiance, in pursuance  of  sovereign rights  of waging war or maintaining peace on the high  seas or  abroad,  it may give rise to no legal  remedy.   But  as applied to acts of the executive directed to subjects within the territorial jurisdiction it has no special meaning,  and can  give no immunity from the jurisdiction of the court  to enquire into the legality of the Act."   Much  importance, cannot in my opinion be attached to  the observations  of Sir B. Peacock in peninsular  and  Oriental Steam  Navigation Company v. The Secretary of State (2).  In that  case the only point for consideration was  whether  in the  case of a tort committed in the conduct of  a  business the  Secretary of State for India could be sued.  The  ques- tion  was answered in the affirmative.  Whether he could  be sued  in cases not connected with the conduct of a  business or commercial undertaking was not really a question for  the court to decide.     In  the  case before us the act of  requisition  which purports  to have been done under the sanction of  municipal law, and in exercise of powers conferred by such law  cannot be  an act of State.  An action on the ground of the  powers being illegally exercised could certainly have been  brought against  the Secretary of State, if the Constitution Act  of 1935 had not been passed.        I  am  not  much impressed by  the  argument  of  the learned  Attorney-General that the expression ’’sue  or (1)[1931] A.C. 662, 671.     (2) [1861] 5 Bom. H.C.R. App,1. 697 be sued" occurring in section 176 does not include an appli- cation  for a writ of certiorari.  The expression  ’sue’  in its plain grammatical sense connotes  the "enforcement of  a claim  or civil right by means of legal  proceedings."   The

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proceedings may be initiated by a plaint or by a petition of motion,   and  it cannot  be  said  that  what  section  176 of   the Constitution  Act  contemplates  is  a   proceeding which   must  begin  with a plaint  and end in a  decree  as laid down in the Civil Procedure Code.     No  argument can also in my opinion be rounded upon  the fact that there was no express mention of prerogative  writs in clause (13) of the Charter by which the Supreme Court was first established in Bengal. The Supreme Court was  invested under  clause  (5) of the Charter with all  the  powers  and privileges of the Court of King’s Bench in England and these undoubtedly  included  the power of issuing  certiorari  and other  prerogative writs.  There are reported cases to  show that  the writs of mandamus were issued to the Directors  of East  India Company by the Court of King’s Bench in  England (1).     On the whole, it seems to me that the view taken by  the learned Judges of the appeal Bench of the Bombay High  Court is right, and this appeal should stand dismissed with costs.     DAS J.--In my opinion this appeal should be allowed.  As I  have taken a view different from those of  three  eminent Judges  of  the  Bombay High Court and some  of  my  learned brethren  of this Court, for all of whom I always  have  the highest respect, I consider it right to give the reasons for my conclusions in some detail.     This  appeal is directed against the judgment and  order of an appellate Bench of the Bombay High Court (Chagla  C.J. and Tendolkar J.) affirming an order of Bhagwati J.  sitting on the Original Side of that Court. The order appealed  from is a mandate in the nature of  (1) Vide The King v. The Directors of East India Company, 4 B.  and Ad. 580; The King v. The Court of Directors  of  the East India Company, 4 M & S.279 698 a  writ of certiorari quashing an order of requisition of  a certain premises in Bombay made by the appellant in exercise of powers vested in it by Bombay Ordinance No. V of 1947.     There is no substantial dispute as to the facts  leading up  to the proceedings out of which the present  appeal  has arisen.  They have been sufficiently stated in the Judgments just delivered and need not be recapitulated by me.     Learned  Attorney-General  appearing in support  of  the present  appeal.  has confined himself to two  main  points, namely, (i) that, having regard to the provisions of  Bombay Ordinance V of 1947 under which the impugned order was made, a  writ of certiorari does not lie at all, and (ii)  that  a writ  of  certiorari does not lie against  the  Province  of Bombay.   Mr.  Seervai appearing for  the  respondents  has, quite  properly,  not  sought to raise any  of  the  several subsidiary  points  which  were  unsuccessfully    canvassed before  the  Courts  below and his endeavour   has  been  to support  the  judgment under appeal on the two  points  men- tioned above and to reinforce them with fresh reasoning  and rulings.     The writ of certiorari is a very well known ancient high prerogative  writ  that used to be issued by  the  Court  of King’s  Bench to correct the errors of the  inferior  Courts strictly so called.  It is with this writ that the Judges of the  King’s  Bench used to exercise control over  Courts  of inferior jurisdiction where the latter acted without  juris- diction or in excess of it or in violation of the principles of  natural justice. Gradually the scope of these writs  was enlarged so as to exercise control over various bodies which were  not, strictly speaking,  Courts  at  all,  but   which were   by statute vested with powers and duties that  resem-

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bled, those of the ordinary inferior Courts. These statutory bodies  were called  quasi-judicial bodies and  their  deci- sions  were  called  quasi-judicial acts and  the  Court  of King’s  Bench freely began to bring up the records of  these quasi-judicial  bodies,  examine them and, if  thought  fit, quash them.  The real reason for this 699 extension  of  the scope of the writ of certiorari  was  the distrust  with  which the Judges looked  upon  the  numerous statutory bodies that were being brought into existence  and vested  with  large powers of affecting the  rights  of  the subject and this extension was rounded on the plausible plea that  these statutory bodies exercised quasi-judicial  func- tions.   The law is now well settled that a writ of  certio- rari will lie to control a statutory body if it purports  to act without jurisdiction or in excess of it or in  violation of  the principles of natural justice, provided that,  on  a true  construction of the statute creating the body, it  can be said to be a quasi-judicial body entrusted with  quasiju- dicial functions.  It is equally well settled that a certio- rari will not lie to correct the errors of a statutory  body which is entrusted with purely administrative functions.  It is, therefore, necessary, in order to determine the correct- ness  of  the  order appealed from, to  ascertain  the  true nature of the functions entrusted to, and exercised by,  the Provincial Government under the Ordinance in question.     The title of the Ordinance was "An Ordinance to  provide for the requisition of land, for the continuance of requisi- tion  of  land and for certain other purposes."  The  second preamble  recited that the Governor of Bombay was  satisfied that  circumstances existed which rendered it necessary  for him  to take immediate action to enable the Provincial  Gov- ernment  to make provision for requisition of land  and  for the  continuance of the requisition of land already  subject to requisition. The Bombay Legislature not being in  session at  the date of this Ordinance and the instructions  of  the Governor-General  under  the proviso to sub-section  (1)  of section 88 of the Act having been obtained. the Governor  of Bombay had legislative power and authority and the Ordinance promulgated by him had; for the requisite period, the  force of an Act of the legislature.  The Ordinance has since  been replaced  by an Act but this appeal must be decided  on  the terms  of the Ordinance which was in force at  the  material times. The preambles to the Ordinance clearly indicated that 700 the  Ordinance had been promulgated under  circumstances  of considerable urgency.  This is a fact which should be  borne in  mind  in interpreting the operative  provisions  of  the Ordinance.     Section  3  of the Ordinance under which  the  order  of requisition was made was in the terms following:     "3.  Requisition  of  land.--If in the  opinion  of  the Provincial Government it is necessary or expedient to do so, the Provincial Government may, by order in writing, requisi- tion any land for any public purpose:     Provided  that  no land used for the purpose  of  public religious  worship or for any purpose which  the  Provincial Government  may  specify  by notification  in  the  Official Gazette shall be requisitioned  under  this section."     It is clear, and, indeed, there can be no dispute,  that the  words "If in the opinion of the Provincial  Government" governed  the words "it is necessary or expedient to do  so" and that whatever those latter words might mean or imply had been left entirely to the opinion of the Provincial  Govern- ment.    What then, were the meaning and implication of  the

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words "it is necessary or expedient to do so" ?     The main section read as a whole clearly implied a close and intimate correlation between the two parts, namely,  the power  conferred on the Provincial Government by the  opera- tive  part and the formation of opinion as to the  necessity or  expediency for exercising that power under  the  earlier part  of the section and this correlation was brought  about by  the use of the word "so" in conjunction with  the  words "to  do." To my mind, the words "to do so" covered  and  in- cluded within their meaning whatever  Provincial  Government had  been  authorised to do.  By the operative part  of  the section the Provincial Government had been empowered, not to requisition  simpliciter  but to requisition  for  a  public purpose.  The  words "to do so" in the opening part  of  the sentence  necessarily,  therefore, referred to  the  act  of requisitioning  for  a public purpose and it  must   follow, therefore,  that the 701 necessity  or  expediency for requisitioning  for  a  public purpose  was left to the opinion of the  Provincial  Govern- ment.  Strictly, as a matter of construction of the section, both grammatically and according to the necessary intendment of  the  Ordinance,  as it appears from  its  language,  the conclusion  is irresistible that the words "to do so"  meant and  stood  for  the words "to requisition any  land  for  a public purpose."  It is to avoid the repetition of the words "requisition any land for any public purpose" that the words "to  do  so" were used in the earlier part.  It  would  have served  the purpose equally well if in the earlier  part  of the  sentence  the words "to requisition any  land  for  any public  purpose" had been used instead of the words  "to  do so"  and the words "do so" had been used at the end  of  the section  instead of the words "requisition any land for  any public purpose."  It appears to me to be entirely fallacious to say that because the words "for a public purpose" were to be found at the end of the section, therefore, the existence of  a public purpose must have been a collateral fact  which could  not  come within the scope of the  formation  of  the opinion.  The truth is that the earlier part of the  section by the use of the words "to do so" included the question  of a  public purpose and the entire composite  matter,  namely, the  necessity or expediency for requisitioning land  for  a public  purpose had been left to the subjective  opinion  of the Provincial Government.     Learned  counsel  for the respondents  contends--and  in this  he  has  the  judgments  of  the  High  Court  in  his favour--that  although  it had been left to  the  Provincial Government  to form its own opinion as to the  necessity  or expediency  of requisitioning land and to make an  order  of requisition  rounded  on that opinion, the  existence  of  a public purpose was a condition precedent to the exercise  of the  power and the question of the fulfilment of the  condi- tion  precedent had not been left to the subjective  opinion of the Provincial Government but had to be determined as  an objective  fact  by  the  Provincial  Government  before  it proceeded to form its opinion and to make the order 702 The  words "to do so", according to learned counsel for  the respondents, referred to the act of requisition only but not to the purpose of such requisition.  I am unable  to  accept this  line  of  argument  which appears to me to be open  to the following several objections:     (i)  It overlooks the word "so" and gives no meaning  to it.     (ii)  If that interpretation were correct then the  sec-

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tion would have read as follows:     ’’If  in the opinion of the Provincial Government it  is necessary or expedient to requisition any land, the  Provin- cial Government may, by an order in writing, requisition any land for a public purpose."     So  read,  the section would mean  that  the  Provincial Government  would, in order of sequence, first have to  form its  opinion as to the necessity or expediency for  requisi- tioning  any land without reference to any purpose. On  this interpretation  it is clear that the  Provincial  Government could  not act directly upon the opinion so formed,  because the  exercise  of the power depended on the existence  of  a public  purpose  as an objective fact which had  yet  to  be determined.  If that were to be so then what was the  neces- sity for the anterior formation of opinion by the Provincial Government  ? A formation of opinion as to the necessity  or expediency  of  a  purposeless requisitioning  would  be  an entirely useless, incomplete and futile mental exercise, for such  formation of opinion would not have in any way  helped the Provincial Government in making an order of  requisition at all.     (iii)  According to the respondents’ interpretation  the existence of a public purpose as an objective fact had to be determined first before the Provincial Government would form its  opinion as to the necessity or expediency  of  requisi- tioning a particular land.  This argument amounts to reading the section upside down and in fact to recasting the section altogether. If that were the true intention of the  Governor of  Bombay in promulgating this Ordinance, then the  section would 703 have said--" If any land is needed for a public purpose  and if in the opinion of the  Provincial Government it is neces- sary  or  expedient to requisition any particular  land  for that purpose, the Provincial Government may, by an order  in writing  requisition  such land."  The section  as  enacted, however, did not say anything of the kind.     (iv)  It is said that this section postulated  a  public purpose  to exist and required the Provincial Government  to form its opinion as to the necessity or expediency of requi- sitioning land for that public purpose.  One can only arrive at the last mentioned proposition by interpreting the  words "tO  do so" in the way suggested by me and once that  inter- pretation  is adopted, the existence of a public purpose  as well  as the necessity or expediency of requisitioning  land must  both become the subject-matter of the opinion  of  the Provincial Government.     (v)  If  the  existence of a public purpose  had  to  be determined  as an objective fact and if  that  determination were liable to be subjected to the scrutiny of the Court  in legal  proceedings, then such a procedure would  have  quite effectively  frustrated  the very object set  forth  in  the second preamble by preventing the Provincial Government,  by means of protracted legal proceedings, from taking immediate action for making provision for requisition of land and  for the  continuance of the requisition of land already  subject to requisition. In this very case, the order of  requisition which had been made in February, 1948, is still in abeyance.     (vi)  The result of the interpretation suggested by  the respondents would be to hold that the Provincial  Government had  to determine judicially the existence of a public  pur- pose  as an objective fact before it proceeded to  form  its opinion as to the necessity or expediency of  requisitioning any particular land.  It is difficult to appreciate how  the Provincial  Government would have proceeded to  decide  this

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issue.  To whom would the Provincial Government give  notice that  it proposed to decide this issue of the  existence  or otherwise of a 704 public  purpose? Who would be interested to deny the  exist- ence of such a purpose at that stage ? None, for no particu- lar person’s land was actually sought to be requisitioned at that  stage.   Indeed  this issue could not  arise  until  a person was actually threatened with a requisition order.  An interpretation  that leads to such an absurd  and  anomalous position cannot but be rejected.     (vii) If it is  contended  that  the  Provincial Govern- ment  had  to  decide this issue as and when  it  sought  to requisition  any particular land belonging to  a  particular person,  the result will be still  more anomalous.  in  that case  the  Provincial  Government would be  called  upon  to decide  the self same issue as to the existence of a  public purpose  as  often and as many times as it  would  need  any land,  for the decision in one case will not bind the  owner of  a different land. There would have to be as  many  deci- sions as to the existence of a public purpose as there would be number of plots of land to be acquired.  Can anything  be more absurd than this ?     (viii)  If  the decision on the existence  of  a  public purpose had to be made along with or simultaneously with the formation  of opinion as to the necessity or expediency  for requisitioning any particular land then it must be  conceded that the two matters were correlated to each other and  then it  will  be  absurd to suggest that the  intention  of  the Ordinance  was to keep the two component parts  in  separate water-tight  compartments, one being required to be  decided as an objective fact and the other being left to the subjec- tive  opinion of the Provincial Government.  In the  absence of specific provision in express language such an  anomalous intention cannot be imputed to the legislative authority.     The objections stated above quite definitely lead ’me to the  conclusion  that the interpretation  suggested  by  the respondents  cannot be adopted and they also fortify my view that  the  section must be construed in the  manner  I  have mentioned. So constructed, it would read as follows: 705     "If  in the opinion of the Provincial Government  it  is necessary or expedient to requisition any land for a  public purpose,  the  Provincial  Government may, by  an  order  in writing, requisition any land for a public purpose."     As soon as this construction is reached, there  remains, on  the authorities  and on  principle, no escape  from  the conclusion that what had been left to the subjective opinion of the Provincial Government was a composite matter, namely, the  necessity or expediency for requisitioning land  for  a public purpose. The Provincial Government was authorised  to form  an  opinion on the entire matter and  every  component part of it.  In short the existence of a public purpose  was left as much to the opinion of the Provincial Government  as was  the  necessity  or expediency  for  requisitioning  any particular land.  It seems clear to me that the  legislative authority meant, not that there must be a public purpose  as an objective fact to be determined judicially which determi- nation  was to be subject to the scrutiny of the Court  but, that  the Provincial Government should be of opinion that  a public  purpose existed for the advancement of which it  was necessary  or expedient to requisition land. In my  opinion, the  words "if in the opinion of the Provincial  Government" governed both the purpose and the necessity or expediency of making an order of requisition.  The formation of opinion on

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the  entire matter was purely subjective, and the  order  of requisition was to be rounded on this subjective opinion and as such was a purely administrative act.  It will be useful, at  this stage, to refer to some of the  judicial  decisions which,  as I apprehend them, fully support my above  conclu- sions.     It  is well established that if the  legislature  simply confides  the power of doing an act to a particular body  if in the opinion of that body it is necessary or expedient  to do  it, then the act is purely an administrative,  i.e.,  an executive  act  as opposed to a judicial  or  quasi-judicial act, and, in the absence of proof of 706 bad  faith, the Court has no jurisdiction to interfere  with it and certainly not by the high prerogative writ of certio- rari.   Usually  this discretion is confided by the  use  of expressions like "If it appears to,." "If in the opinion of" or  "If so and so is satisfied."  In Mayor etc. of  Westmin- ster  v.  London and NorthWestern  Railway Company (1)  Lord Halsbury L.C. observed:     "Assuming the thing done to be within the discretion  of the  local authority, no Court has power to  interfere  with the mode in which it has exercised it. Where the Legislature has confided the power to a particular body, with a  discre- tion  how  it is to be used, it is beyond the power  of  any Court  to contest that discretion.  Of course, this  assumes that  the thing done is the thing which the Legislature  has authorised."     To  the  like effect are the following  observations  of Batty  J.  in Balvant Ramchandra Natu v.  The  Secretary  of State (2):     ’’No doubt when a power has been conferred in  unambigu- ous  language by Statute, the Courts cannot interfere   with its exercise  and substitute  their own discretion for  that of  persons  or bodies selected by the Legislature  for  the purpose."     Sometimes  the  Legislature  may entrust a  power  to  a specified  authority  to do an act for  a  certain  purpose. Even  in such a case, the Legislature may, nevertheless,  by appropriate  language, leave not only the  determination  of the  necessity or expediency for doing the act but also  the determination  of the necessity or expediency for doing  the act  for that purpose as a composite matter to the  opinion, satisfaction  or  discretion of that authority.  In  such  a case what is a condition precedent for the doing of the  act is  not the actual existence of the particular  purpose  but the  opinion  of the specified authority  that  the  purpose exists.  In other words the authority is also made the  sole judge  of  the existence of the purpose,  for  otherwise  it cannot form its opinion as to the necessity or expediency of doing the act for that purpose. (1)  [1905] A.C. 426.           (2) I.L.R. [1905] Bom.  480, 503. 707     In  Wijeyesekera  v. Festing(1) the Governor  of  Ceylon with the advice of his Executive Council made an order under the  Acquisition  of  Land Ordinance,  1876,  directing  the Government  agent to take order for the  acquisition,  under the provisions of the Ordinance, of part of the  appellant’s estate  for a public purpose, namely, the making of a  road. The whole point in the case was whether the decision of  the Governor  in  Council was conclusive on the point  that  the land  was wanted for a public purpose.  The question  turned on  sections 4 and 6 of the Ordinance (No. a of 1876)  rele- vant portions of which provided as follows:

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   "4.  Whenever it shall appear to the Governor that  land in  any locality is likely to be needed for any public  pur- pose,  it  shall be lawful for the Governor  to  direct  the Surveyor-General  or  other officer generally  or  specially authorised  by the Governor in this behalf, to examine  such land and report whether the same is fitted for such purpose. 6. The Surveyor-General, or other officer  so authorised  as aforesaid, shall then make his report to the Governor wheth- er the possession of the land is needed for the purposes for which  it  appeared likely to be needed as  aforesaid.   And upon  receipt  of  such report it shall be  lawful  for  the Governor,  with  the  advice of the  Executive  Council,  to direct  the Government Agent to take order for the  acquisi- tion of the land. "     In  delivering  the judgment of the  Board  Lord  Finlay approved  of  a previous decision of the  Supreme  Court  of Ceylon and observed as follows:     "It appears to their Lordships that the decision of  the Governor  that  the land is wanted for  public  purposes  is final, and was intended to be final, and could not be  ques- tioned  in any Court.  The nature of the objection  is  such that  it  would  be obviously unsuitable  for  the  District Court,  which  is concerned with questions  of  compensation which  would  arise  if the land is to be  taken.   But  the question might also be raised (1) [1919] A.C. 646. 708 in  a preliminary way, as was suggested by Lord Wrenbury  in the course of the argument.  It might be raised by an appli- cation  to the Court to stay the further proceedings on  the ground  that although the Governor in the Executive  Council had  made the order, it was not a case where  the  condition precedent  of  the Ordinance was really  fulfilled,  namely, that the land was wanted for a public purpose.     In their Lordships’ opinion no such proceeding would  be competent  in such a case, and the decision of the  Governor in Council, making an order under the latter part of s. 6 of the Ordinance, is final and conclusive."     His Lordship concluded--      "When you have an enactment of that kind it shows  that it was intended that the decision of the Governor in  Execu- tive Council on the point should be binding." The  decision in Point of Ayr Collieries Ltd.  v.  Lloyd George (1) which was a case of requisition of an undertaking turned   on   reg.   55  (4)  of   the   Defence   (General) Regulations--the relevant parts of which were as follows:     "If  it  appears to a competent authority  that  in  the interests of the public safety, the defence of the realm, or the  efficient  prosecution of the war, or  for  maintaining supplies and services essential to the life of the  communi- ty, it is necessary to take control on behalf of His Majesty of  the whole or any part. of an existing  undertaking,  and that,  for  the purpose of exercising such  control,  it  is expedient that the undertaking or part should be carried  on in  pursuance  of an order mader under this  paragraph,  the competent  authority  may  by  order  authorise  any  person (hereinafter  referred to as an "authorised controller")  to exercise, with respect to the undertaking or any part there- of  specified in  the  order, such functions of  control  on behalf of His Majesty as may be provided by the order..." [1943] 2 All E.R. 546. 709     An  order  under the regulation having  been  made  with respect  to  the  appellant’s  undertaking,  the   appellant brought  an action impugning it on the ground,  inter  alia,

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that there were no adequate grounds upon which the  Minister could  find, as he stated he had found, namely, that it  was necessary  to  take control in the interests of  the  public safety, the defence of the realm, the efficient  prosecution of  the war or for maintaining supplies and services  essen- tial  to  the community. Singleton J. having  dismissed  the action,  the appellant went up to the appeal Court.  If  the reasonings  and  the  conclusions  of  the  judgments  under appeal  before us were sound and correct it could well  have been  held  by  the Court of Appeal in that  case  that  the regulation  postulated  the existence of  the  interests  of public safety etc. which had to be judicially determined  as an objective fact and that what had been left to the subjec- tive opinion of the competent authority was only the  neces- sity  for  taking  control of the  undertaking.   This  was, however,  repelled and in dismissing the appeal Lord  Greene M.R.  with  whom Goddard and du Parcq L. JJ.  concurred  ob- served as follows:     "If  one  thing  is settled beyond  the  possibility  of dispute,  it  is  that, in construing  regulations  of  this character expressed in this particular form of language,  it is   for  the  competent  authority,  whatever Ministry that may be, to decide as to whether or not a case for the  exer- cise  of the powers has arisen it is for the  competent  au- thority to judge of the adequacy of the evidence before  it. It is for the competent authority to judge of the credibili- ty  of that evidence.  It is for the competent authority  to judge  whether or not it is desirable or necessary  to  make further investigations before taking action.  It is for  the competent authority to decide whether the situation requires an immediate step, or whether some delay may be allowed  for further  investigation and perhaps negotiation.   All  these matters are placed by Parliament in the hands of the  Minis- ter in the belief that the Minister will exercise his powers properly, and 91 710 in the knowledge that, if he does not do so, he is liable to the criticism of Parliament.  One thing is certain, and that is that those matters are not within the competence of  this Court.   It is the competent authority that is  selected  by Parliament to come to the decision, and if that decision  is come to in good faith, this Court has no power to interfere, provided, of course, that the action is one which is  within the   four  corners  of  the  authority  delegated  to   the Minister."     There  is no substantial difference in the  language  of reg.  55 (4) and that of the Bombay Ordinance now before  us if  it  is  properly construed and read in the  way  I  have indicated above. Even if it were possible, on an overmeticu- lous  analysis, to detect any such difference, the  position is put beyond doubt in the decision of the English Court  of Appeal  in Carltona Ltd. v. Commissioners of Works and  Oth- ers(1).  The  decision turned on reg. 51 (1)of  the  Defence (General) Regulations which was in the following terms:     "A competent authority, if it appears to that  authority to  be necessary or expedient so to do in the  interests  of the public safety, the defence of the realm or the efficient prosecution  of  the war, or for  maintaining  supplies  and services  essential to the life of the community,  may  take possession  of  any land, and may give  such  directions  as appear to the competent authority to be necessary or expedi- ent  in  connection with the taking of  possession  of  that land."     There  is no substantial difference at all  between  the

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language  of  this regulation and section 3  of  the  Bombay Ordinance  as construed above.  If the reasonings of  Chagla C.J. and Tendolkar J. were correct, the words "so to do"  in the  above regulation would refer only to the act of  taking of possession, for, according to them, the interests of  the public  safety etc. do not describe the nature or  character of that act but constitute the purpose for which the  compe- tent  authority was to do the act of taking possession.   On that line of reasoning the regulation could be equally  said to postulate (1) [1943] 2 A,E.R.560. 711 the existence of the interests of the public safety etc.  as conditions  precedent  to the exercise of the power  and  it could be said that the fulfilment of those conditions prece- dent  had  to  be determined quasi judicially so  as  to  be subject to the scrutiny and interference of the Court.   All this line of reasoning was rejected by Lord Greene M.R. with the  concurrence of Goddard and du Parcq L. JJ. in the  fol- lowing words:     "The last point that was taken was to this effect,  that the  circumstances  were such that,  if  the  requisitioning authorities  had brought their minds to bear on the  matter, they could not possibly have come to the conclusion to which they  did come.  That argument is one which, in the  absence of an allegation of bad faith --and I may say that there  is no such allegation here --is not open to this Court.  It has been  decided that, where a regulation of this kind  commits to an executive authority the decision of what is  necessary or  expedient and that authority makes the decision,  it  is not  competent to the Courts to investigate the  grounds  or the  reasonableness  of the decision in the  absence  of  an allegation  of bad faith.  If it were not so, it would  mean that  the Courts would be made responsible for  carrying  on the executive Government of this country on these  important matters.  Parliament,  which  authorises  this   regulation, commits  to the executive the discretion to decide and  with that  discretion if bona fide exercised no Court can  inter- fere.   All that the Court can do is to see that  the  power which  it is claimed to exercise is one which  falls  within the four corners of the powers given by the Legislature  and to see that those powers are exercised in good faith.  Apart from  that, the Courts have no power at all to inquire  into the  reasonableness,  the  policy, the sense  or  any  other aspect of the transaction."     Vedlapatla Suryanarayana v. Province of Madras (1) is  a Full  Bench decision of the Madras High Court. It  discussed section  6  of the Land Acquisition Act and  held  that  the decision of the Provincial Government (1) I.L.R,. [1946.] Mad. 153; A.I.R,. [1945] Mad. 394. 712 that the land was required for a public purpose was final.     Robinson v. Minister of Town and Country Planning (1) is instructive.   The provisions of the Town and Country  Plan- ning Act, 1944, were considered in that case.  The  relevant portions of section 1 of that Act were as follows:     "Where  the  Minister of Town and Country  Planning  (in this  Act referred to as the Minister) is satisfied that  it is requisite, for the purpose of dealing satisfactorily with extensive war damage in the area of a local planning author- ity, that a part or parts of their area, consisting of  land shown to his satisfaction to have sustained war damage or of such  land together with other land contiguous  or  adjacent thereto,  should  be laid out afresh and  redeveloped  as  a whole,  an order declaring all or any of the land in such  a

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part of their area to be land subject to compulsory purchase for  dealing with war damage may be made by the Minister  if an  application in that behalf is made by the  authority  to him  before the expiration of five years from such  date  as the  Minister may by order appoint as being the  date  v:hen the making of such applications has become practicable."     It will be noticed that the power to make the order  was subject to the satisfaction of the Minister not only that it was requisite that lands should be laid out afresh but  that it was requisite "for the purpose of dealing  satisfactorily etc." which unquestionably was a question of fact and  could be said to be subject to objective determination yet, it was held by the appeal Court, overruling an earlier decision  of Henn  Collins  J. in another case that  the  entire  matter, namely,  the  necessity for laying out the lands  afresh  as well  as the purpose of dealing was for the satisfaction  of the Minister, that he was the sole judge, that no  objective test was possible and that the decision of the Minister  was an administrative act. Franklin  v. Minister for Town and Country planning (2)  was concerned with section 1 (1) of the New (1)  [1947] 1 A.E,R. 851.   (2) [1947] 2 A.E.R. 289;  [1948] A.C.87 713 Towns  Act.  1946,  the relevant portions of  which  ran  as follows:     "If the minister is satisfied, after consulting with any local authorities who appear to him to be concerned, that it is expedient in the national interest that any area of  land should  be developed as a new town by a  Corporation  estab- lished under this Act, he may make an order designating that area as the site of the proposed new town."     Here  what was left to the satisfaction of the  Minister was not only whether it was expedient that any area,  should be  developed as a new town but whether it was expedient  in the national interest that any area should be so  developed. If the present arguments were sound it could be held in that case  that the section postulated the existence of  national interest  to be determined judicially as an  objective  fact and  that it was a condition precedent to the making of  the order.  It was, however, held by the House of Lords that  no judicial or quasi-judicial duty was imposed on the  Minister in the discharge of his statutory duties, those duties being purely administrative.     The  case of Hubli Electricity Co. Ltd. v.  Province  of Bombay  (1)  may also be referred to. Relevant  portions  of section  4, sub-section (1) of the Indian  Electricity  Act, 1910, provided:     "The  Provincial Government may, if in its  opinion  the public interests require, revoke a license in the  following cases, namely:     (a) Where the licensee, in the opinion of the Provincial Government  makes wilful and unreasonably prolonged  default in doing anything required of him by or under this Act."     Could  anything be more objective than the  requirements of public interest or the wilful and unreasonably  prolonged default ? And yet in construing the section their  Lordships of the Privy Council observed:     "Their  Lordships are unable to see that there  is  any- thing in the language of the sub-section or in the (1) (1948) L.R. 76 I.A. 57;A.I.R. 1949 P. C. 136, 714 subject-matter  to  which it relates on which to  found  the suggestion  that  the  opinion of the Government  is  to  be subject to objective tests.  In terms the relevant matter is

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the opinion of the Government--not the grounds on which  the opinion  is  based.   The language leaves no  room  for  the relevance of a judicial examination as to the sufficiency of the  grounds  on which the Government acted  in  forming  an opinion.  Further, the question on which the opinion of  the Government  is  relevant is not whether a default  has  been wilful and unreasonably prolonged but whether there has been a wilful and unreasonably prolonged default.  On that  point the opinion is the determining matter, and--if it is not for good   cause   displaced  as  a   relevant   opinion-it   is conclusive."     The recent case of A.C. Mohamed v. Sailendra Nath  Mitra (1) may also be referred to.  It was concerned with an order of  requisition of certain premises except the ground  floor made under section a (1) of the West Bengal Requisition  and Control  (Temporary  Provisions) Act, 1947,  which  runs  as follows:     "Whenever  it appears to the Provincial Government  that any premises in any locality are needed or are likely to  be needed for any public purpose, it may, by order in  writing, requisition such premises, Provided that no premises  exclu- sively  used for the purpose of religious worship  shall  be requisitioned under this section."     I  find no difference between the language of this  sec- tion  and that of section 3 of the Bombay Ordinance as  con- strued  by me.  It is quite clear that what was left to  the opinion of the Provincial Government was not the need of the premises  simpliciter  but the need of any  premises  for  a public purpose as a composite matter.  If the present  argu- ments  were sound, it could be held that the section  postu- lated  the existence of a public purpose and that  what  was left  to  the opinion of the Provincial Government  was  the need  of  the  premises for that public  purpose.   It  was, however, held by a Division Bench of the Calcutta High Court (1) (1950] 54 c.w.N. 642. 715 --and I think quite rightly--that it sufficed for the  exer- cise of the power that the local Government was satisfied as to the existence of the condition precedent to the  exercise of its powers.     To  summarise: It is abundantly clear from the  authori- ties  cited above that questions of fact such as the  exist- ence  of  a  public purpose or the interest  of  the  public safety or the defence of the realm or the efficient prosecu- tion  of the war, or the maintenance of  essential  supplies and the like may well be and, indeed, are often left to  the subjective opinion or satisfaction of the executive authori- ty.   Merely  because such a matter involves a  question  of fact  it  does not follow at all that it  must  always,  and irrespective  of the language of   the   particular   enact- ment,    be   determined judicially as  an  objective  fact. When the Legislature leaves it to an executive authority  to form an opinion on or to be satisfied about such a matter as a  condition for the exercise of any power conferred on  it, and  to act upon such opinion, what is  condition  precedent is, not the actual existence of the matter but, the  subjec- tive opinion or satisfaction of the executive authority that it  exists.  The cases referred to above  clearly  establish this much that when the Legislature leaves it to the opinion or satisfaction of the executive authority as to whether  it is  necessary  or expedient to requisition any  land  for  a public  purpose the executive authority is  constituted  the sole  judge of the composite matter, that is to say  of  the existence of the public purpose as well as the necessity  or expediency  for  requisitioning  the land  for  that  public

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purpose, call it a condition precedent or an objective  fact or what you will.  On a proper construction of section 3  of the  Bombay Ordinance (No. V of 1947) there can be no  doubt that  that section left it to the Provincial  Government  to form  its own opinion on the entire matter, namely,  whether it was necessary or expedient to requisition any land for  a public purpose and to act upon that opinion.  So  construed, the  formation  of opinion on the whole matter and  the  act founded  thereon  was nothing but a  purely  administrative, (i.e., executive) 716 act.   If  the acts were done in good faith and  within  the four  corners of the Ordinance, the Court  cannot  interfere with  it in any proceeding and far less by  the  prerogative writs  of certiorari or prohibition.  If there be any  hard- ship  the appeal of the subject must be to  the  Legislature and  not to the Court.  The first and the major head of  the arguments advanced on behalf of the respondents must, there- fore, fail.     It  will be convenient to dispose of at once two  ancil- lary  points.  In the petition a bald suggestion  was  made, verified  only as true to information and belief and  unsup- ported by any legal evidence, that the Provincial Government had  made the order mala fide and for a collateral  purpose. The petitioner gave evidence in Court.  There is nothing  in the evidence which may support any plea of bad faith on  the part of the Provincial Government or its officers.  All that was said was that Mrs. C. Dayaram to whom the  requisitioned premises had been allotted was the wife of an advocate  from Karachi,  and was a refugee and that the petitioner did  not know whether her husband had also migrated from Karachi.  At an adjourned hearing  the  question  was put  as to  whether Mrs.  Daygram was concerned in any manner whatever with  the administration  of  Government  of Bombay or  was  a  public servant.  The purpose of the question was perhaps to  estab- lish that she was in a position to influence the  Government officers.   The petitioner in fairness replied that  he  was not  aware  if she were.  In the evidence there  is  nothing from  which  it can be taken as proved that  the  Provincial Government and its officers had acted in bad faith.  Second- ly, it was suggested that the Provincial Government had  not acted  within the four corners of the Ordinance in that,  on its  own  showing, there was no public purpose  at  all  for which  the order was made.  Bhagwati J. expressed  the  view that the requisitioning of a flat for a particular or  indi- vidual  refugee was not a public purpose, for there  was  no question of serving the general interests of the  community. On appeal Chagla C.J. disagreed with the above view.  In his opinion the housing of a 717 refugee might certainly be a public purpose, for securing  a house for an individual refugee might itself confer a  bene- fit  on  the  community as a whole.   In  this  opinion  the learned Chief Justice was manifestly right. But the  learned Chief  Justice went on to say that choosing one  refugee  as against  another  without  any ostensible  cause  would  not constitute  a public purpose for which the flat in  question could be requisitioned. This conclusion, with great  respect to  the  learned Chief Justice, appears to be founded  on  a slight  confusion  of ideas.  It has to be  remembered  that this  was  not a solitary order of requisition made  by  the Government for the public purpose of housing refugees.   The petitioner’s  Solicitors’  letter dated February  27,  1948, clearly stated that  there were  "similar orders" issued  by the  Government.  The impugned  order itself shows  ex facie

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that  the  order  was made generally  for   "public  purpose housing."   It was not in terms made for the benefit of  any particular individual refugee.   The  allotment of the  flat to Mrs. C. Daygram was the next step and as such the  allot- ment  of  the  flat already requisitioned  to  a  particular refugee  cannot  possibly  vitiate the  preceding  order  of requisition.    To  say that seeing that the  allotment  was made to her, the order of requisition must have been made in her  interest is to act on suspicion which is not  permissi- ble.  The flat had to be allotted to a refugee for  purposes of his or her housing.  The fact that the petitioner himself was  a refugee has been stressed before us and it  has  been said that it was a novel way of solving the refugee  problem by  ousting one refugee and putting in another. There is  no evidence as to the relative circumstances of the  petitioner and  Mrs. C. Daygram.  For all we know she may have  been  a more  deserving  person whose needs were  more  urgent  than those of the petitioner.  The point is that it lies  heavily on  the  person who challenges the bona fides  of  a  public authority  or  who  contends that the  authority  had  acted outside  its  powers to establish his case on  cogent  legal evidence.  He cannot succeed by leaving the matter in 718 the  air and to the ingenuity of his counsel in creating  an atmosphere of mere suspicion, which falls far short of legal proof.     I  now pass on to the second head of argument  which  is based  on  the  assumption that the existence  of  a  public purpose  had not been left to the subjective opinion of  the Provincial Government but was an objective fact which was  a condition precedent to the exercise of the power of requisi- tion.  What consequences follow from this assumption ?   The contention of the respondents is that the fulfilment of this condition  as an objective fact had to be determined by  the Provincial Government judicially and that being thus charged with  a  quasi-judicial function the  Provincial  Government became  amenable to the high prerogative writ of  certiorari in case it acted without jurisdiction or in excess of it  or in  violation  of the principles  of.natural  justice.   The question,  therefore,  arises as to what are the  tests  for ascertaining  whether  the  act of a  statutory  body  is  a quasi-judicial act or an administrative act.     As to what is a quasi-judicial act there have been  many judicial pronouncements.  May C.J. in Queen v. Dublin Corpo- ration (1) described a quasi-judicial act as follows:     "In  this connection the term  judicial does not  neces- sarily  mean acts of a Judge or legal tribunal  sitting  for the determination of matters of law, but for purpose of this question,  a judicial act seems to be an act done by  compe- tent authority upon consideration of facts and circumstances and  imposing  liability or affecting the  rights.   And  if there be a body empowered by law to enquire into facts, make estimates  to impose a rate on a district, it would seem  to me  that the acts of such a body involving such  consequence would be judicial acts."     Lord Atkinson in Frome United Breweries v. Bath Justices (2)  approved of this definition as one of the best  defini- tions.  The definition that now holds the (1) (1878) 2 Ir.R. 371.           (2) [1926] A.C. 586, 719 field is that of Atkin L.J. as he then was, in Rex v.  Elec- tricity Commissioners (1).  It runs as follows:     "Whenever  any body of persons having legal authority to determine  questions affecting the rights of  subjects,  and having  the  duty to act judicially act in excess  of  their

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legal authority they are subject to the  controlling  juris- diction   of  the King’s Bench Division exercised  in  these writs."     This definition was accepted as correct in Rex v. London County Council (2) and by many learned Judges in  subsequent cases including the latest decision of the Privy Council  in Nakkuda  Ali  v.M.F. De S. Jayaratne (3).   In  Banwarilal’s case (4) I had occasion to analyse tile essential character- istics of a quasi-judicial act as opposed to an  administra- tive  act.   I stand by what I said on this  point  on  that occasion. As I pointed out there, the two kinds of acts have many  common  features.  Thus a person entrusted  to  do  an administrative act has often to determine questions of  fact to  enable  him to exercise his power.  He has  to  consider facts  and circumstances and to weigh pros and cons  in  his mind before he makes up his mind to exercise his power  just as  a person  exercising a judicial or quasi-judicial  func- tion has to do. Both have to act in good faith.  A good  and valid administrative or executive act binds the subject  and affects  his  rights  or imposes liability on  him  just  as effectively as a  quasi-judicial act does.  The  exercise of an  administrative or executive act may well be and is  fre- quently  made dependent by the Legislature upon a  condition or contingency which may involve a question of fact, but the question  of fulfilment of which may, nevertheless, be  left to  the subjective opinion or satisfaction of the  executive authority,  as was done in the several  Ordinances,  regula- tions and enactments considered and construed in the several cases referred to above.  The first two items of the defini- tion given by Atkin L.J. may be equally  applicable to an  (1) [1924] 1 K.B. 171.    (4) (1943) 48 CW.N. 766 at (2) [1931] 2K.B. 215.             pp. 799-801. (3)(1950) 54 c.w.N. 883. 720 administrative  act.  The real test  which  distinguishes  a quasi-judicial act from an administrative act is the   third item  in  Atkin L.J.’s definition, namely, the duty  to  act judicially. As was said by Lord Hewart C. J. in R. v. Legis- lative Committee of the Church Assembly(1):     "In  order that a body may satisfy the required test  it is not enough that it should have legal authority to  deter- mine questions affecting the rights of subjects; there  must be superadded to that characteristic the further  character- istic that the body has the duty to act judicially."     The  above  passage  was quoted with  approval  by  Lord Radcliffe  in delivering the judgment of the  Privy  Council in  Nakkuda  Ali’s  case (2).   Therefore,   in  considering whether a particular statutory authority is a quasi-judicial body or a mere administrative body it has to be  ascertained whether  the statutory authority has the duty to  act  judi- cially. When and under what circumstances then can a  statu- tory body be said to be under a duty to act judicially ?     An  examination of the decided cases shows that in  many of  them where the statutory bodies were held to  be  quasi- judicial  bodies  and  their  decisions   were  regarded  as quasi-judicial  acts there were some parties making a  claim under  the statute and some parties opposing such claim  and the statutory authority was empowered to adjudicate upon the matters in issue between the parties and to grant or  refuse the  claim. Thus in The Queen v. The Local Government  Board (3)  the contesting parties were the County Council of  Wex- ford  on one side and Webster & Leary on the other side  and the  Local Government Board was the statutory  authority  to decide  whether the latter were entitled to  higher  salary. In  Rex v. Woodhouse (4) the contest was between the  appli-

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cants.  for renewal of licence and certain brewers  and  the Justices of Leeds were to decide whether the licence  should or should not be renewed. Reference may also be made to  the cases  of Rex v. Post (1) [1928] 1 K.B. 411 at p. 415. (3) (1902) L. R. 2 Ir. 349. (2) (1950) 54 C.W.N. 883.      (4) [1906] 2 K,B. 501. 721 master General (1), Rex v. London County Council (2) and Rex v. Hendon District Council(3). Even in Rex v. Boycott (4) it may  be said that the Statute there contemplated  a  contest between  the  Local Education Society and the  boy  who  was alleged  to  be imbecile and whose father  was  entitled  to notice under the regulations before a certificate was issued against the boy.  It is not necessary to multiply instances. The point to note is that in each of these cases there was a lis--a  proposition  and an  opposition--and  the  statutory authority was authorised to decide the question and in  each of these cases the decision was regarded as a quasi-judicial decision.   Indeed in some of the cases the necessity  of  a lis between two or more parties has been referred to or even insisted  upon.  Thus on Errington & others v.  Minister  of Health Maugham L.J., as he then was said:     "In determining whether the position of the Minister  is that which I have described as being quasi-judicial, I think it  is necessary to appreciate that under a  clearance  area scheme,  to which objections are made by the owners  of  the property in the area, there is a true contest as between the owners  of  the property and the local authority;  in  other words, there are two sides as between whom the Minister  has to come to a determination after consideration".     The following  passage  from the  judgment of Greet L.J. in  that  case quoted with approval by Swift J. in  Frost  & others  v. Minister of Health (6) takes the matter a  little further in that line:     "In  so  far as the Minister deals with  the  matter  of confirmation of a closing order in the absence of  objection by  the owners, it is clear to me, and I think to my  breth- ren, that he would be acting in a ministerial or administra- tive capacity, and would be entitled to make such  enquiries as  he  thinks necessary to enable him to make up  his  mind whether  it was in the public interest that order should  be made. But the position, in  (1) [1928] 1 K.B. 291.    (4) [1939] 2 KB. 651. (2)  [1931] 2 K.B. 215.     (5) [1939] 2 K.B. 249, 271. (3) [1933] 2 K.B. 696.    (6) [1935] 1 K.B. 286, pp.292-3 722 my  judgment,  is different where objections  are  taken  by those interested in the properties which will be affected by the order if confirmed and carried out.  It seems to me that in deciding whether a closing order be made in spite of  the objections which have been raised by the owners, it seems to me reasonable that the Minister should be regarded as  exer- cising quasijudicial functions". Swift J. in accepting the above statement added:     "I accept that from the moment an objection is made  the Minister  is  exercising quasi-judicial  functions,  but  it seems to me to be clearly recognised by the Court of  Appeal that  up  to the time of objection being made  the  Minister acts in an administrative, and not a judicial, capacity."     Under the Housing Act, 1930, the local authority submits a clearing order to the Minister.  If no objection is raised by  the  owners of the property the Minister  considers  the matter  and  either confirms or modifies the  order  of  the local authority.  In the absence of objection the  Minister, according to those two decisions,  acts in an administrative

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capacity. Why ? Because there is no lis in the sense of  two opposing  parties.   There is only a proposal by  the  local authority.   But  if objection is raised by the  owner,  the Minister, according to these cases, in deciding the  matter, acts  judicially. Why ? Because there is a lis  between  two contending  parties,  namely, the local  authority  and  the owner  which has to be decided by the Minister.  It is  true that  in Franklin v. Minister of Town and  Country  Planning (1)  the  House  of Lords held that under  the  Statute  the Minister  at no stage acted judicially, and, therefore,  the actual  decisions  in these two cases cannot  be  sustained. But, nevertheless, I have quoted the above passages only  to illustrate the reasons and the principle on which the act of a  statutory body empowered to decide disputes  between  two contesting  parties  was  held  to  be  quasijudicial.   The Report of the  Ministers’  Powers Committee  in defining the words ’judicial’  and (1) [1947] 2 A.E.R. 289; [1948] A.C. 87:(1947) 176 L.T. 312, 816. 723 quasi-judicial’ which definition was accepted by Scott  L.J. as correct in Cooper v. Wilson (1) stated:     "A  true  judicial  decision  pre-supposes  an  existing dispute  between two or more parties and then involves  four requisites  ......  A  quasi-judicial decision equally  pre- supposes an existing dispute between two or more parties and involves  ......  "     This  definition  of a quasi-judicial  decision  clearly suggests  that there must be two or more contesting  parties and  an  outside authority to decide  those  disputes.   The following  observations  of my Lord the Chief  Justice  then sitting  as a Single Judge in the Bombay High Court, in  Kai Khushroo  Sorabjee  v. The Cormmissioner of  Police  (2)  in which  an  order made under the Defence of India  Rules  was under consideration, are relevant on this point:     "It  appears  to me that unless the  authority  invested with the power to pass an order had to act judicially, i.e., to weigh a question from two sides and decide on the matter, no question of quasi-judicial act can arise.  The two  sides cannot include himself as he is the deciding authority."     In   Franklin v.  Minister of Town and Country  Planning (3), while it was before the Appeal Court, Lord Oaksey  L.J. said:     "In  all the authorities which have been referred to  as showing  that at an enquiry there must be an examination  of the  case  of both sides, there was what has been  called  a lis:  that is to say, there were two parties contesting  and the   Minister  as an outside authority,  was  deciding  the case."     In  the very recent case of Patri Shaw v.R.N.  Roy(4)  a Division  Bench  of the Calcutta High Court  dissented  from this very Bombay case (5) which is now before us and  empha- sised the necessity of a lis between two parties for  making the decision of the authority a quasi-judicial act. (1)  [1937] 2K,B.309, 340. (2)(1947) Bom. L.R. 717; A.I.R. 1947 Born, 153. (3) (1947) 176 L,T..312, 316. (4) (1950) 54 C.W N. 855.    (5) (1949) 51 Bom. L.R, 342. 724     On the other hand there are many cases where the act  of a statutory authority has been accepted as a  quasi-judicial act  although  there  were  not  two opposing  parties  over whose  disputes  the authority was to sit  in  judgment.  In those  cases  it was the authority who made a  proposal  and another  person objected to it and the authority itself  was

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entrusted  to hear the objection and give a decision on  it. In short the authority which was the proposer was the  judge in its own cause.  The only ground on which the decision  of such an authority, placed in such situation as I  have  just mentioned,   was regarded  as a quasi-judicial act was  that the  authority  was  empowered to affect the  rights  of  or impose  a liability on others and was required by  the  very law  which constituted it to act judicially.  To take a  few illustrative  cases: The Queen v. Corporation of Dublin  was the  case  before May C.J. for quashing a  borough  rate  by certiorari.  Here the contest was between the Corporation on one side and the ratepayers on the other.  It was the Corpo- ration which, under the Act, was empowered, after considera- tion of facts and circumstances, to impose a borough rate, a liability of the ratepayers. The provisions of the  relevant statutes  are not set out in the report and it is  difficult to say precisely what duties had been imposed on the  Corpo- ration  before it could impose liability on  ratepayers.  I, therefore, pass on to the case of Rex v. Electricity Commis- sioners  (2) in which we find the celebrated  definition  of Atkin L.J.  It will be noticed that in this case also  there were  not two parties apart from the  Commissioners.  Indeed the  Commissioners  themselves proposed the scheme  and  the companies  took objection to it and the Commissioners  after holding the local enquiry and hearing the objections had  to make  the  final order.  It will also be  noticed  that  the local  enquiry  was to be held by  the  Commissioners  them- selves.  The only principle on which this decision rests  is that  the  Commissioners  had power to  do  something  which affected the rights of others and that they were required (1) (1878) 2 L.R. Ir. 371.     (2) [1924] 1 K.B. 171. 725 by  the statute itself to hold an enquiry,  hear  objections and  evidence in support thereof and make their final  deci- sion after considering all facts and circumstances. Take the case  of Estate and Trust Agencies (1927) Ltd. v.  Singapore Improvement  Trust (1).  The contest was between the  appel- lant  as  owner and the respondent Trust  as  the  authority making  an  adverse declaration with respect to  the  appel- lant’s  building. By the very provisions of the statute  the respondent  Trust was made the judge in its own  cause.   It was,  however,  directed  to  entertain   objections,   hear evidence  and then decide the issue.  It is this  last  men- tioned  circumstance  on which this decision  rests.  It  is needless  to multiply instances, for, I think,  these  cases sufficiently illustrate the position.     What  are  the  principles to be deduced  from  the  two lines.  of cases I have referred to ?  The principles, as  I apprehend them, are:     (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising  out of  a claim made by one party under the statute which  claim is opposed by another party and to determine the  respective rights  of  the contesting parties who are opposed  to  each other, there is a lis and prima facie and in the absence  of anything  in the statute to the contrary it is the  duty  of the  authority  to act judicially and the  decision  of  the authority is a quasi-judicial act; and     (ii)  that if a statutory authority has power to do  any act  which  will  prejudicially affect  the  subject,  then, although there are not two parties apart from the  authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination  of the authority will yet be a quasi-judicial act provided  the authority is required by the statute to act judicially.

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   In  other words, while the presence of two  parties  be- sides  the  deciding authority will prima facie and  in  the absence of any other factor impose upon the  (1) [1937] 3 A.E. R. 327 (P.C.). 93 726 authority  the  duty to act judicially, the absence  of  two such  parties is not decisive in taking the act of  the  au- thority  out  of the category of quasi-judicial act  if  the authority  is  nevertheless required by the statute  to  act judicially.     Mr.  Seervai relied on two cases, namely, Rex v.  Hendon Rural District Council (1) and Rex v. London County  Council (2) as establishing that although the statute itself may not require an inquiry yet the decision of the authority may  be a quasi-judicial act. In the second case although there were no express provisions for inquiry in the statute itself, the rules  framed  by the Theatre and Music Hall  Committee  had made elaborate provisions for notice, advertisement, opposi- tion  and  hearing  in public and  liberty  to  examine  and cross-examine  witnesses.   In  the first  case  notice  was actually given, objections were invited and the parties  had appeared.  In any case, in both the cases, as I have already pointed out, there was a lis between two contending  parties apart  from the deciding authority and the decision  of  the authority affected the rights of the parties and can, there- fore,  be  well  supported as a quasi-judicial  act  on  the principle first enunciated.      The question I have now to consider is whether the  act of  the  Provincial Government under  the  Bombay  Ordinance satisfied  either of the two tests.  In the case  before  us there  were  not two parties so as to make up a lis  in  the usual sense.  Here the Provincial Government had been autho- rised  to  requisition  land for a public  purpose  and  the respondent’s  father  whose  interests  were   prejudicially affected opposed the requisition.  The case, therefore,  did not  satisfy the test of a quasi-judicial act based  on  the presence  of two parties apart from the  Provincial  Govern- ment. Chagla C.J. obviously felt the difficulty and tried to get  over  it by introducing the State as a  party,  as  if, under  the  Government of India Act, 1935, the State  was  a legal  entity  apart from the Provincial  Government.   This introduction of a fiction is wholly unconvincing and  cannot be supported.  The Ordinance under review (1) [1933] 2 K.B. 696.         (2) [1931] 2 K.B. 215. 727 did not contemplate or permit such a fiction.  The bald fact has  to be faced that in this case there was an  absence  of two contending parties apart from the Provincial  Government which was the deciding authority. This, as I have said,  is, however, not decisive, for it has yet to be enquired whether the case satisfied the second test, that is to say,  whether the  Ordinance  required the Provincial  Government  to  act judicially.     Turning  now to the provisions of the Ordinance,  it  is contended  that it is implicit in section 3 that the  exist- ence of a public purpose must be determined judicially.  The argument  may be summed up thus: The existence of  a  public purpose  as  an objective fact was, under the main  body  of section  3,  a condition precedent to the  exercise  of  the power  of requisition, just as the non-user of land for  any of the purposes mentioned in the proviso to section 3 or the vacancy  of  the premises under section  4  were  conditions precedent. This condition precedent being an objective fact, it  had  of  necessity to be determined  by  the  Provincial

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Government in a quasi-judicial manner. The first part of the argument  wholly  overlooks the difference in  the  language used  in  the main body of section 3 and that  used  in  the proviso  to that section and that used in section 4  of  the Ordinance.   The proviso  to section 3 placed certain  lands outside  the ambit    of the power conferred on the  Provin- cial Government    by the main body of that section.  If the Provincial   Government purported to exercise its  power  of requisition  with  respect  to land which  fell  within  the proviso  on  an erroneous belief that it did not,  then  the Provincial  Government overstepped the limits of its  powers and  the  order of requisition would not  bind  anybody  and could be challenged by suit as wholly without  jurisdiction. Likewise, under section 4 the Provincial Government’s  power of  requisition  had been confined in its  range  to  vacant premises  and  if  the Provincial  Government  purported  to requisition premises as vacant premises which in  fact  were not  vacant  premises then also the  Provincial   Government entered  the forbidden field and went beyond its  power  and its 728 decision would not bind anybody and could be challenged by a suit.  This  would be the position in the two cases  I  have mentioned,  because  there  was nothing in  the  proviso  to section  3  or  in section 4 which could  suggest  that  the question  of  the  fulfilment of  the  condition  precedent, namely,  the  non-user of the land for any of  the  purposes mentioned in the proviso to section 3 or the vacancy of  the premises under section 4, had in any manner been left to the subjective opinion of the Provincial Government.  But, as  I have  already stated, the main body of section 3, on a  cor- rect construction of it, expressly left the question of  the existence  of the public purpose along with the question  of the  necessity or expediency of requisitioning land  to  the subjective opinion of the Provincial Government, and, there- fore,  its  decision, if made in good faith,  could  not  be questioned at all.  The circumstance that the fulfilment  of the condition precedent laid down in the proviso to  section 3  or in section 4 had not been left to the opinion  of  the Provincial  Government  could  not affect  the  question  of construction  of the language used in the main body of  sec- tion  3  or alter the nature or character of the  act  under that section.  The first part of the argument overlooks this aspect  of  the  matter.  The second part  of  the  argument proceeds on the assumption that an objective fact can  never be  left to the subjective opinion of a specified  authority and must always be determined judicially.  The cases already referred  to in connection with the first head of  arguments clearly show that the question of the existence of a  public purpose or the interests of the State and the like may  well be,  and, indeed, often are, left to the subjective  opinion or satisfaction of the specified authority and in such cases its  decision, in the absence of bad faith, cannot be  chal- lenged in any proceeding. Even if the  matter be not left to its  subjective opinion, nevertheless,  as  already  pointed out, an administrative authority has frequently to come to a decision  in its own mind as to the objective facts such  as the  existence of a public purpose or the like as a step  in the process of the exercise of  its administrative 729 powers.  That decision, if erroneous, will not bind  anybody and may be questioned in an action.  See the observations of Palles  C.B.    in The Queen v. Local  Government  Board(1). The     mere fact that the existence of a public purpose  is a condition precedent to the exercise of the power of requi-

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sition  will  not necessarily make the decision  as  to  its existence  a  quasijudicial act.  There is  no  warrant  for saying that the fulfilment of the condition precedent to the exercise  of  an administrative power must  necessarily  and always  be determined judicially by the  authority  invested with  the power.  The authority decides it for its own  pur- pose  and in case of dispute the final decision  rests  with the Court --a circumstance which also supports the view that the  authority has no duty to decide it judicially.   In  my opinion,  even  on the assumption that the question  of  the existence  of  a  public purpose had not been  left  to  the subjective  opinion of the Provincial Government,  and  that the question had to be determined by the Provincial  Govern- ment,  there was nothing in section 3 to suggest  that  such determination had to be made judicially at all.  The  obser- vations of Lord Radcliffe in Nakkuda Ali’s case(2) at p. 887 are also instructive and helpful on this point.     Mr. Seervai then draws our attention to sections 10  and 12  of the Ordinance on which he strongly relies in  support of  his  contention.  It should be borne in  mind  that  Mr. Seervai has not contended that the order for requisition  by itself  was a quasi-judicial act.  His contention  has  been that this power to make the order was subject to a condition precedent,  namely, the existence of a public purpose  which alone had to be established judicially as an objective fact. It  will,  therefore, have to be seen whether  the  sections relied on have any bearing on the question of the determina- tion  of  the existence in fact of a  public  purpose.   The sections ran as follows:     "10.  Power to obtain information--(1)   The  Provincial Government may, with a view to carrying out the purposes  of this Ordinance, by order require any (1) [1902] L.R. 2 Ir. 349.         (2) (1950) 54 C.W.N. 883. 730 person  to furnish to such authority as may be specified  in the order such information in his possession relating to any land  which is requisitioned or is continued under  requisi- tion  or is intended to be requisitioned or continued  under requisition.     Every person required to furnish such information as  is referred to in sub-section (1) shall be deemed to be legally bound to do so within the meaning of sections 176 and 177 of the Indian Penal Code (XLV of 1860).     12.   Power to enter and  inspect land.--Without  preju- dice to any powers otherwise conferred by this Ordinance any officer or person empowered in this behalf by the Provincial Government by general or special order may enter and inspect any land for the purpose of determining whether, and, if so, in  what  manner, an order under this Ordinance  should   be made  in  relation to such land or with a view  to  securing compliance with any order made under this Ordinnace. "     In considering and construing the above sections it  has to be borne in mind that a mere provision for an enquiry  as a  preliminary step to coming to a decision will not  neces- sarily  make  the  decision a quasi-judicial  act,  for  the purpose  of the enquiry may only be to enable  the  deciding authority  to  make up its mind to do what may be  a  purely administrative act. Take the case of Robinson v. Minister of Town and Country Planning (1) to which reference has already been  made where the act of the Minister was held to  be  an administrative act. Lord Greene M.R. said at p. 859:    "  As  an example of the difference to be  found  in  the subject-matter dealt with in different statutes I may  point out that this case is different from a case where a Minister is given the duty of hearing an appeal from an order such as

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a  closing order made by a local authority. This is not  the case of an appeal. It is the case of an original order to be made  by  the Minister as an executive authority who  is  at liberty to base his (1) [1947] 1 A. E ,R. 851, 731 opinion on whatever material he thinks fit, whether obtained in the ordinary course of his executive functions or derived from  what  is brought out at a public enquiry if  there  is one.  To say that, in coming’ to his decision, he is in  any sense  acting in a quasi-judicial capacity is to   misunder- stand   the   nature of the process altogether.   I  am  not concerned  to dispute that the enquiry itself must  be  con- ducted  on what may be described as  quasi-judicial  princi- ples,  but this is quite a different thing from saying  that any  such  principles  are applicable to the  doing  of  the executive  act itself, i.e., the making of the  order.   The enquiry  is  only a step in the process which leads  to  the result,  and there is, in my opinion, no  justification  for saying that the executive decision to make the order can  be controlled  by  the Courts by reference to the  evidence  or lack  of  evidence at the inquiry which is  here  relied  on Such  a theory treats the executive act as though it were  a judicial  decision (or, if the phrase is preferred,a  quasi- judicial decision) which it most emphatically is not."     In  Franklin  v. Minister of Town and  Country  Planning (1),  to which also  reference has  already been made,  Lord Thankerton at p. 295-296 said:     "In  my opinion, no judicial or quasi-judicial duty  was imposed  on  the respondent, and any reference  to  judicial duty  or  bias is irrelevant, in the present case.  The  re- spondent’s duties under section 1 of the Act and Schedule  I thereto  are, in my opinion, purely administrative, but  the Act  prescribes  certain methods of, or steps in,  the  dis- charge of that duty.  It is obvious that, before making  the draft  order,  which  must contain a  definite  proposal  to designate the area concerned as the site of a new town,  the respondent must have made elaborate inquiry into the matter, and  have consulted any local authorities who appear to  him to  be concerned, and, obviously, other departments  of  the Government, such as the Ministry of Health, would  naturally require  to be consulted.  It would seem, accordingly,  that the respondent was required to satisfy (1) [1947] 2 A.E.R, ’289; [1948] A.C. 87, 732 himself that it was a sound scheme before he took the  seri- ous  step  of issuing a draft order.  It seems  clear  also, that the purpose of inviting objections, and, where they are not  withdrawn,  of having a public inquiry, to be  held  by some  one  other than the respondent, to  whom  that  person reports, was for the further information of the  respondent, in order to the final consideration of the soundness of  the scheme of the designation,  and it is important to note that the  development  of the site, after the order is  made,  is primarily  the  duty of the development  Corporation  estab- lished  under  s.  2 of the Act.  I am of  opinion  that  no judicial  duty  is laid on the respondent  in  discharge  of these statutory duties, and that the only question is wheth- er he has complied with the statutory directions to  appoint a  person to hold the public inquiry, and to  consider  that person’s report."     Keeping   these   weighty observations  in  view  I  now proceed to analyse the provisions of the two sections.     It will be noticed that the powers given to the  Provin- cial  Government under both the sections are  only  enabling

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and  in terms are not compulsory.  The Court below has  con- strued  the  word ’may’ as ’must’ on the hypothesis  that  a right  implies a corresponding duty and the Provincial  Gov- ernment  is, therefore, under  an  obligation  to   exercise the  power and consequently an enquiry is compulsory.  I  am unable  to accept this line of  reasoning.  The  authorities show that in construing a power the Court will read the word ’may’  as ’must’ when the exercise of the power will  be  in furtherance  of the interest of a third person for  securing which  the power was given. Enabling words are always poten- tial and never in themselves significant of any  obligation. They are read as compulsory where they are words to effectu- ate a legal right.  See Julius v. Lord Bishop of  Oxford(1). Here the power was given to enable the Provincial Government to  obtain  information  to carry out the  purposes  of  the Ordinance.   It  was  not given for the (1) (1880) 5 App. cas.214. 733 benefit of any other person including the owner of the  land sought  to be requisitioned.  when a power is given  to  one person, here the Provincial Government, for his own benefit, couched  in  enabling words making  its  exercise  optional, there  is  no principle or authority that I  know  of  which enables the Court to make the exercise of the power  compul- sory by reading the word ’may’ as ’must’. Assuming, however, that  ’may’ in these sections means ’must,’ what  follows  ? It  is  true that the information could  be  obtained  under section  10 with a view to carrying out the purposes of  the Act but what was the nature of the information that might be gathered under the section ?  It was only information relat- ing  to the land requisitioned or to be  requisitioned  that could  be obtained. Information relating to the  land  would certainly be useful in enabling the Provincial Government to consider the necessity or expediency of requisitioning  that land.   Such  information  would also  be  useful   to   the officer  determining the question of compensation.  But  how could  any information relating to any particular land  have any  bearing  on the question of the existence of  a  public purpose  which was the only matter under section  3,  which, according to Mr. Seervai, had to be judicially determined by the  Provincial Government ? I fail to perceive any.   As  I have  said,  information relating to land  certainly  had  a bearing on the question whether it was necessary or  expedi- ent  to acquire that particular land which admittedly was  a purely administrative act.  Finally, section 10 enabled  the Provincial  Government to require  ’any person’  to  furnish information  relating  to the land.  The Ordinance  did  not think fit even to mention the owner or other persons  inter- ested  in  the  land as a specific  source  of  information. Assuming that the Provincial Government was obliged to  make any  enquiry, the owner of the land had no special right  to be  consulted apart from the general right of "any  person." No  provision  was made for giving notice  of  the  intended requisition  by  special notice or by advertisement  or  for enabling  any  aggrieved person to lodge any  objection  and nobody 734 was  designated  as authority on whom was cast any  duty  to hear the objections. Further, it will be noticed that  under the  section   the information was to be furnished  to  such authority as might be specified, which means that the infor- mation  was not to be communicated to the  Provincial   Gov- ernment direct. Therefore, the information was nothing  more than  the information obtained for the Minister by  somebody appointed by him to hold a public enquiry under the statutes

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which  were considered in Robinson v. Minister of  Town  and Country  Planning C) and Franklin v. Minister of  Town   and Country Planning (2).  The circumstance that by  sub-section (2) of that section a legal obligation, on pain of  criminal penalty,  was imposed on persons to furnish information,  so strongly relied on by Mr. Seervai, appears to me to have  no bearing  on the character or scope of the inquiry  envisaged by  sub-section  (1).   The provisions of  section  12  also carried  the  matter no further.  This section was  also  an enabling  section.   The  inspection was in  terms  for  the purpose  of determining whether, and, if so, in what  manner an order should be made.  It can have no possible bearing on the  question of the existence of a public purpose which  is an independent question having no necessary relation to  any particular  land. Further, presumably, a number of  premises might have to be requisitioned and, if the contention of the respondent  were  correct, there would have to  be  as  many quasi-judicial  determinations of the existence of the  same public purpose as there might be the number of houses to  be acquired--a proposition impracticable and absurd on the face of  it.  Finally, compare the provisions of sections 10  and 12  with those of section 6. The determination of the  ques- tion  of  compensation and the  apportionment  thereof  were certainly  judicial  or  quasijudicial acts.   There  was  a provision  for appeal also. Section 16 provided  for  making rules for holding the inquiry under sub-sections (1) and (3) of  section 6. The circumstance that the Ordinance  provided for  judicial or quasi-judicial inquiry for the purposes  of section 6 (1) [1947] 1 A.E. R. 851.      (2) [1948] A.C. 87. 735 but was silent as regards section 3 cannot be overlooked.     In  my judgment, the Ordinance did not require the  Pro- vincial Government to act judicially at all in the matter of making  a requisition order under section 3. The  provisions for  obtaining information and for getting inspection  under sections 10 and 12 respectively cannot be read as provisions for  a  judicial or quasijudicial inquiry, nor was  such  so called inquiry obligatory at all. Those sections served  and were intended to serve the purpose of obtaining  information which would enable the Provincial Government to exercise its administrative, i.e., executive function of making an  order for requisition.  The conclusions I have arrived at are  (i) that  on a true construction of section 3 of  the  Ordinance the  determination  of the  existence of a  public   purpose and   the  necessity or expediency  for  requisitioning  any particular   land for that purpose was a purely  administra- tive act, for  the  entire  composite matter was left to the opinion  of  the Provincial  Government,  and  its decision, if  made in good faith, could not be questioned; (ii)  that, apart  from the question of construction and  assuming  that the matter had not been left to its opinion,  the   determi- nation   of   the  existence  of a  public  purpose  or  the necessity or  expediency for making the order  could not  be regarded  as a quasi-judicial act, because (a)there  was  no lis  in the  sense  of  dispute  between   two    contesting parties to be decided by the Provincial Government; and  (b) the Provincial Government was not required by the  Ordinance to  hold any judicial inquiry or to act judicially and  that the  determination of the existence of a public purpose  was only  a step in the process of the exercise of the  adminis- trative  power and, if erroneous the decision could at  best be  challenged  by an action, but a certiorari  would  be  a wholly  inappropriate remedy.  The second head  of  argument must therefore, be rejected.

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   There  is the last head of argument which requires  con- sideration before I conclude.  The argument is that 736 the existence of a public purpose was a condition  precedent to the exercise of the power and, therefore, the  fulfilment of  the condition precedent had to be determined  judicially by  the Provincial Government as an objective fact  but  the provincial  Government  could not, by wrongly  deciding  the preliminary  point,  assume  jurisdiction  to  exercise  the power. In Bunbury v. Fuller (1) Coleridge J. laid down:     "Now  it  is a general rule, that no  Court  of  limited jurisdiction  can give itself jurisdiction by a wrong  deci- sion  on a point collateral to the merits of the  case  upon which the limit to its jurisdiction depends and however  its decisions may be final on all particulars making up together that subject matter which, if true, is within its  jurisdic- tion,  and however necessary in many cases it may be for  it to make a preliminary inquiry whether some collateral matter be  or be not within the limits, yet upon these  preliminary questions,  its decision must always be open to  enquiry  in the superior Court."     This   was  cited by  Blackburn J. in Pease  v.  Chaytor (2).   The  same principle was also laid down by  the  Privy Council  in Colonial Bank of Australia v. Willan  (3).   The principle is quite plain but as Lord Esher M.R. pointed  out in  Reg. v. Commissioner of Income-tax (4) "its  application is often misleading." The learned Master of the Rolls  clas- sified the cases in two categories thus:      "When an inferior Court or tribunal or body, which  has to  exercise  the power of deciding facts, is  first  estab- lished by Act of Parliament, the legislature has to consider what  powers it will give that tribunal or body.  It may  in effect say  that, if a certain state of facts exists and  is shown  to  such tribunal or body before  it proceeds  to  do certain things it shall have  jurisdiction to do such things but not otherwise.  There  it  is not for them  conclusively to  decide whether that state of facts exists (1) 9 Ex. 111 at p- 140.        (3) [1874] L.R. 5 P.C. 417. (2) 3 B. & S. 620.              (4) (1888) 21 Q.B.D. 313. 737 and,  if they exercise the jurisdiction without  its  exist- ence,  what they do may be questioned, and it will  be  held that  they  have acted without jurisdiction.  But  there  is another state of things which may exist. The legislature may entrust  the  tribunal  or body with  a  jurisdiction  which includes the jurisdiction to determine whether the  prelimi- nary state of facts exists, as well as the jurisdiction,  on finding   that   it  does exist, to proceed  further  or  do something   more.When the legislature are establishing  such a   tribunal  or  body  with  limited   jurisdiction,   they also  have  to  consider whatever  jurisdiction   they  give them,  whether  there shall be any appeal from  their  deci- sions,  for otherwise there will be none.  In the second  of the  two cases I have mentioned it is erroneous  application of  the formula to say that  the tribunal cannot give  them- selves  jurisdiction  by wrongly deciding certain  facts  to exist,  because  the legislature gave them  jurisdiction  to determine  all  the facts, including the  existence  of  the preliminary  facts  on which the further exercise  of  their jurisdiction depends; and if they were given jurisdiction so to  decide,  without  any appeal being given,  there  is  no appeal from such exercise of their jurisdiction."     Mr. Seervai contends that the present case falls  within the  first  class  of cases and strongly relies  on  Rex  v.

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Woodhouse (1) and Rex v. Bradford (2) as establishing that a certiorari  lies  to  correct the error  of  the  Provincial Government.  There are two answers to this argument. In  the first place, it is not disputed that the formation of  opin- ion as to the necessity or expediency of requisitioning  any land  is  a purely subjective matter and that the  order  of requisition  founded  on that opinion is  an  administrative act.   What is contended is that the existence of  a  public purpose  must  be judicially determined  by  the  Provincial Government before it could proceed to exercise its  adminis- trative powers.  In short qua that issue only the Provincial Government   was  to  act  judicially.  The  consequence  of this argument is that the decision of the Provincial Govern- ment on this issue was not a decision [1906] 2 K.B. 501.           (2) [1908] 1 K.B. 365, 738 on  a collateral matter but a decision on the  issue  itself which,  according to the argument, had been left within  the jurisdiction  of  the provincial Government  to  decide.  It must, therefore, follow that the case fell within the second class  of cases mentioned by Lord Esher M.R. The  fact  that there is no right of appeal from this decision, although the Ordinance   provided for an appeal under section 6, is  also significant.   Before coming to the decision on  this  issue the  Government had sent an Inspector to gather  information under  section 10 and the Respondent’s father, the  original applicant, furnished all necessary information and  produced the  original  Deed of Assignment on which  he  founded  his title and gave a written statement. The requirements of  the Statute  had been complied with and the petitioner  had  his say.   The  decision  of the Provincial  Government  that  a public  purpose existed given in such circumstances  became, in the absence of bad faith, binding and, in the absence  of any  right of appeal, was conclusive, however erroneous  the decision  might have been.  The second answer to  Mr.  Seer- vai’s  contention  is  that, assuming that   the  case  fell within  the first class of cases and the erroneous  decision could  be  corrected,  it might have been  corrected  by  an action but certainly not by certiorari. The two cases relied on  by  Mr. Seervai, when properly understood, can  have  no application  to the facts of the case before us.  In Rex  v. Woodhouse (1) the Court of Appeal accepted the position that the licensing Justices in granting or refusing to grant  the licence had to perform a quasi-judicial act, for they had to decide the matter as between two contending parties, namely, the  applicant  for  licence and the  persons  opposing  the grant. There the Justices granted a provisional licence  and referred the matter to Quarter Sessions.  Three points  were taken,  namely,  (i) that the Justices did not  apply  their mind to the issue and failed to decide the matter judicially but made the order in pursuance of a pre-existing  agreement between  them  and the Corporation, (ii) that  the  Justices were biased and (iii) that (1) [1906] 2 K.B. 501. 739 the  power of the Justices being limited to  granting  licen ces  to persons who had some specified qualifications,  they could  not,  by wrongly  deciding  that  the applicants  had the necessary qualifications, assume jurisdiction to do  the quasi-judicial  act of granting the licence.  This  decision of the Court of Appeal was reversed by the House of Lords in Lord Mayor etc. of Leeds v. Ryder (1) on the ground that the Justices  had to act according to their own  discretion  and that  they  were not guilty of any bad faith in  doing  what they did.  The point to note, however, is that the  decision

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of  the Court of Appeal proceeded  on the footing  that  the Justices  were  a quasi-judicial body and that   by  wrongly deciding a preliminary fact they assumed to discharge  their quasi-judicial  function of granting the licence and it  was the  quasi-judicial  act of granting the  licence  that  was brought up and  quashed by certiorari.   The case of Rex  v. Bradford(2)   also   proceeded   on  the  footing   that  in granting  the licence to the District Council to  take  away stones  etc. the Justices were exercising  a  quasi-judicial function  and  they assumed jurisdiction  to  exercise  that quasi-judicial  function by wrongly deciding the  collateral fact  that  the land in question was not a park.   The  same remarks  apply  to Rex (Greenaway) v.  Justices   of  Armagh (3).   All these cases in the appeal Court were cases  where a  quasijudicial body purported  to assume  jurisdiction  to discharge its quasi-judicial function by an erroneous  deci- sion  of  a collateral fact and, therefore,  certiorari  was granted    to correct the error of jurisdiction by  quashing the   order itself which was a quasi-judicial act.   In  the case now before us the Provincial Government was   function- ing  as an administrative body doing an administrative  act, namely, forming its opinion as to the necessity or expedien- cy of requisitioning land and making an order of requisition based on that opinion.  If the existence of a public purpose was a collateral fact, then at best it was a case of an (1)  [1907] A.C. 420.   (2) [1908] 1 K.B. 365.   (3)  {1934] 2, Ir. R. 55. 740 administrative  body  assuming jurisdiction to  perform  its administrative powers by erroneously deciding the collateral fact  as to the existence of a public purpose. In such  cir- cumstances  the two cases relied on by Mr. Seervai can  have no  possible  application.   Assuming that  this  case  fell within  the  first class mentioned by Lord Esher  M.R.  this erroneous assumption of jurisdiction to do an administrative act  might have been corrected by an action  but  certiorari cannot  possibly  be the  appropriate remedy.   It  is  said that in deciding the collateral fact the Provincial  Govern- ment  was  acting  judicially   and,  therefore,  certiorari might  go.  The argument will take the respondents  nowhere, for, assuming that the decision on the question of existence of a public purpose was a quasi-judicial act, that decision, at  the most, might be quashed but the  administrative  act, namely, the formation of opinion and the order based thereon would remain unaffected, for certiorari would not affect it. The  passage I have quoted from the judgment of Lord  Greene M.R.  in Robinson v. Minister of Town and Country  Planning, clearly  establishes that although the  preliminary  enquiry had  to be done in a quasijudicial manner, that  fact  could not  alter the nature or character of the ultimate  adminis- trative act. That administrative act would remain an  admin- istrative  act and could not be touched by  certiorari.  The third  head of arguments advanced on behalf of the  respond- ents must, therefore, also fail.     In my judgment the first of the two points raised by the learned  Attorney-General  on behalf of the  appellant  must prevail  for  reasons stated above. This  is  sufficient  to dispose of this appeal and the second point, namely, whether a writ of this nature can lie against the Provincial Govern- ment, does not arise.  In view of the fact that the  Govern- ment  of India Act, 1935, has been repealed and  the  provi- sions  of our Constitution on this point are different  from those of the Government of India Act, the question has  also become academic for future purposes and I express no opinion on it.

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741     I, therefore, agree with my Lord the Chief Justice  that this  appeal should be allowed and the judgments and  orders of  the  Courts below should be set aside and  the  petition should stand dismissed. I also agree to the order for  costs made by my Lord the Chief Justice.                                Appeal allowed.       Agent for the appellant: Ranjit Singh Narula.       Agent  for the respondents Nos. 1 (a) and 1  (b)  :                Rajinder Narain.